Smith v. Woodford

Filing 59

ORDER OF CLARIFICATION Signed by Judge Jeremy Fogel on 2/24/09. (dlm, COURT STAFF) (Filed on 3/5/2009)

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United States District Court

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For the Northern District of California

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FREDERICK WAYNE SMITH, Plaintiff, vs.

JOANNE WOODFORD, et al., Defendant(s).

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No. C 06-00103 JF (PR) ORDER OF CLARIFICATION

On February 19, 2009, the Court partially granted Defendants' motion to dismiss claims for failure to exhaust administrative remedies, and ordered Defendants to file a dispositive motion on the exhausted claim that Defendants acted with deliberate indifference to Plaintiff's medical needs by failing to provide Plaintiff with a proper diet to meet his needs as a diabetic and Hepatitis C Virus patient. (Docket No. 58.) In the same order, the Court dismissed with leave to amend the following claims: 1) Defendants violated Plaintiff's right to access to courts by confiscating his legal property; 2) Defendants violated the Free Exercise Clause by confiscating Plaintiff's religious books; and 3) Defendants Woodford, Kirkland and Winslow are liable as
Order of Clarification P:\PRO-SE\SJ.JF\CR.06\Smith00103_clarification.wpd

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supervisors for their personal involvement in the unlawful acts of their subordinates. An amended complaint supersedes the original complaint, such that "plaintiff waives all causes of action alleged in the original complaint which are not alleged in the amended complaint." London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981). Furthermore, defendants not named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). Accordingly, Plaintiff is instructed to include in his amended complaint the exhausted medical claim, i.e., that Defendants acted with deliberate indifference to Plaintiff's medical needs by failing to provide Plaintiff with a proper diet to meet his needs as a diabetic and Hepatitis C Virus patient, in addition to the claims that were dismissed with leave to amend as mentioned above. Plaintiff shall file an AMENDED COMPLAINT within thirty (30) days from the date this order of clarification is filed. The amended complaint must include the caption and civil case number used in this order (06-00103 JF (PR)) and the words AMENDED COMPLAINT on the first page. Plaintiff may not incorporate material from the prior complaint by reference. Plaintiff may not allege any claims beyond the three listed above. Failure to file an amended complaint in accordance with this order will result in dismissal of these claims. No later than sixty (60) days from the date they are served with Plaintiff's amended complaint, Defendants shall file a motion for summary judgment or other dispositive motion with respect to the claims in the amended complaint. Briefing shall proceed thereafter in accordance with the Court order filed February 19, 2009. (See Docket No. 58.) IT IS SO ORDERED. DATED:
2/24/09

United States District Court

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For the Northern District of California

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JEREMY FOGEL United States District Judge

Order of Clarification P:\PRO-SE\SJ.JF\CR.06\Smith00103_clarification.wpd

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