Thomas v. Terry

Full title: JASON LATRELL THOMAS, Plaintiff, v. TERRY, et al., Defendants.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Sep 23, 2015

2:12-CV-0471-MCE-CMK-P (E.D. Cal. Sep. 23, 2015)

Opinion

JASON LATRELL THOMAS, Plaintiff, v. TERRY, et al., Defendants. No. 2:12-CV-0471-MCE-CMK-P United States District Court, E.D. California. September 23, 2015

          ORDER

          CRAIG M. KELLISON, Magistrate Judge.

         Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are plaintiff's motions for leave to file further amendments to the pleadings (Docs. 69, 84, and 94).

         This action currently proceeds on the third amended complaint (Doc. 68) filed on March 23, 2015, pursuant to the court's order (Doc. 67) issued that same day granting plaintiff's motion for leave to amend. In that order, the court determined that, while plaintiff should be allowed to amend his complaint to name additional defendants with respect to his Eighth Amendment claim arising from a May 2010 cell extraction (but not to add additional unrelated claims), the proposed third amended complaint was too vague as to the allegations against the additional defendants. The court stated that plaintiff would be provided an opportunity to file a fourth amended complaint, but did not set a due date for filing a fourth amended complaint pending resolution of plaintiff's motions for the appointment of counsel (addressed by separate order issued herewith). Since the issuance of the March 23, 2015, order, plaintiff has filed the three pending motions for leave to further amend the pleadings. A fifth amended complaint was filed erroneously filed on May 29, 2015, with the second such motion.

         The pending motions each seek leave of court to assert additional facts in support of plaintiff's claims and against Terry and Lawrence, as well as the newly-named defendants, arising from the May 2010 cell extraction. Because the court had not set a due date for plaintiff to file a fourth amended complaint pursuant to the March 23, 2015, order as of the dates the pending motions were filed, leave of court to assert additional facts is not required. Any factual allegations which are additional to those already presented in the third amended complaint filed with the March 23, 2015, order may be asserted in the fourth amended complaint already allowed by the court, a due date for which will be set by this order.

         In preparing a fourth amended complaint, plaintiff should bear in mind that leave to amend is granted only with respect to the joinder of new defendants allegedly liable under the Eighth Amendment for force used on May 26, 2010, during a cell extraction. Plaintiff is informed that, as a general rule, an amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to amend, all claims alleged in the original complaint which are not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be complete in itself without reference to any prior pleading. See id.

         If plaintiff chooses to file a fourth amended complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how each named defendant is involved, and must set forth some affirmative link or connection between each defendant's actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). If plaintiff chooses not to file a fourth amended complaint, the action shall proceed on the second amended complaint on plaintiff's Eighth Amendment claim against defendants Lawrence and Terry only.

         Accordingly, IT IS HEREBY ORDERED that:

         1. Plaintiff's motions (Docs. 69, 84, and 94) are denied as unnecessary;

         2. The fifth amended complaint (Doc. 85) is stricken;

         3. The third amended complaint (Doc. 68) is dismissed with leave to amend pursuant to the March 23, 2015, order; and

         4. Plaintiff may file a fourth amended complaint pursuant to the March 23, 2015, order within 30 days of the date of this order.