The opinion of the court was delivered by: Cathy Ann Bencivengo United States Magistrate Judge
ORDER 1) GRANTING PLAINTIFF LEAVE TO FILE A FIFTH AMENDED COMPLAINT [Doc. No. 51]; and 2)DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF THE FIFTH SAN DIEGO METROPOLITAN TRANSIT AMENDED COMPLAINT WHEN IT IS SYSTEM SAN DIEGO TROLLEY, INC. RECEIVED BY THE CLERK OF THE EMPLOYEE A. CAMPBELL, CODE COURT COMPLIANCE OFFICER,
Plaintiff Anthony Rashad Johnson, a state prisoner proceeding pro se, brought this action under 42 U.S.C. §1983 for violation of his civil rights. Plaintiff filed a "Motion proposed to a Fifth amended complaint, to add a party." [Doc. No. 51.] The Court construes the motion as a motion for leave to file a Fifth Amended Complaint. The Court GRANTS plaintiff leave to file a Fifth Amended Complaint, but did not accept the proposed fifth amended complaint submitted with the motion. Rather, plaintiff is granted 45 days, up to and including January 25, 2008, within which to file a (new) Fifth Amended Complaint. THIS WILL BE THE LAST TIME PLAINTIFF WILL BE GRANTED LEAVE TO FILE AN AMENDED COMPLAINT. Therefore, the Court will give plaintiff 45 days to carefully prepare a (new) Fifth Amended Complaint before filing it with this Court and serving it on the existing defendants and any additional parties.
Plaintiff has a history of several unsuccessful attempts to name and serve proper Defendants. Plaintiff alleges that a security officer at a San Diego trolley station handcuffed him and applied excessive force. This action is brought against the officer and the employer entity. Plaintiff originally instructed the U.S. Marshal to serve the entity Defendant named as "San Diego Metropolitan Trolley Service." The summons was returned unexecuted, because "San Diego Metropolitan Trolley Service" was not the correct name. Plaintiff then moved to amend the Complaint to change the name of the Defendant to "MTS." [Doc. No. 29.] Because "MTS" did not appear to be a proper name, the Court denied the motion without prejudice. [Doc. No. 30.]
Next, Plaintiff sought to change Defendant's name to "San Diego Metropolitan Transit System." [Doc. No. 32.] The motion was granted. [Doc. No. 33.] Plaintiff was ordered to file a Third Amended Complaint naming "San Diego Metropolitan Transit System" and "A.Campbell, San Diego Metropolitan Transit System, Employee" as Defendants. The Third Amended Complaint naming Defendants as ordered was filed on July 13, 2007. [Doc. No. 34.] Also on July 13, 2007, the summons was issued.
The docket reflects four unexecuted returns of service attempted since July 13, 2007. [Doc. No. 36-39.] The forms named Defendants as "San Diego Metropolitan Trolley System" instead of "San Diego Metropolitan Transit System," and "Employee Officer A. Campbell." With respect to the Defendant named as "San Diego Metropolitan Trolley System," service was not effected because Plaintiff did not state the correct name. With respect to the individual Defendant, the service was not effected because "the attorney/Legal Unit for MTA would not accept [service] on behalf of an individual officer." [Doc. No. 36.]
On September 14, 2007, plaintiff filed a request that "the entity of the defendants be changed to its proper title." [Doc. No. 41: 20-21]. Plaintiff submitted a proposed Fourth Amended Complaint which named Defendants as "Metropolitan Transit System, San Diego Trolley, Inc." and "Metropolitan Transit System, San Diego Trolley, Inc. employee A. Campbell, Code Compliance Officer." On September 25, 2007, the court granted plaintiff's motion, accepted the Fourth Amended Complaint for filing, and ordered the U.S. Marshal to effect service. [Doc. No. 42.]
On October 18, 2007, the summons was effectively served on both San Diego Metropolitan Transit System and San Diego Trolley, Inc. [Doc. No. 45.] The docket shows one unexecuted return of service as to A. Campbell (San Diego Metropolitan Transit System, Employee). [Doc. No. 46.]
On November 5, 2007, Defendants San Diego Metropolitan Transit System and San Diego Trolley, Inc. filed a Motion to Dismiss the Fourth Amended Complaint. [Doc. No. 47.] In it, Defendants revealed that, at the time of the alleged incident, the officer named in the complaint (A. Campbell) was an employee of Transit System Security, not San Diego Transit or Metropolitan Transit Development Board. [Decl. Of Julie Morris Soden 2: 10-12.] According to Defendants, San Diego Trolley, Inc., contracts out the Security Patrol/Guard Services with Transit Systems Security and, on the date of the alleged incident, Transit Systems Security was providing security services to San Diego Trolley, Inc., pursuant to the terms of the contract. [Decl. Of Julie Morris Soden 2: 6-9.]
Plaintiff will be given a FINAL opportunity to amend the complaint and to file a (new) Fifth Amended Complaint. Plaintiff should take time to redraft his complaint to ensure that each defendant is properly and exactly named. For example, in her declaration, Ms. Soden refers to the employer of A. Campbell as both "Transit Systems Security" and as "Transit System Security." Also, plaintiff may want to review whether the factual allegations of the complaint should be amended with regard to the new defendant.
Plaintiff is advised that "an amended pleading supersedes the original." Hal Roach Studios, Inc. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989); see also Ferdik v. Bonzelet, 963 F.2d 1262 (9th Cir. 1992). "All causes of action alleged in an original complaint which are not alleged an amended complaint are waived." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted); see also Marx v. Loral Corp., 87 F.3d 1049, 1055 (9th Cir. 1996); USS-Posco Indus. v. Contra Costa County Bldg. & Constr. Trades Council, AFL-CIO, 31 F.3d 800, 811 (9th Cir. 1994).
Because an amended pleading supersedes the original, it must stand or fall on its own; jurisdictional and other allegations essential to the claim must be realleged; and the original complaint is rendered irrelevant. An amended complaint that drops a defendant named in the original complaint effectively dismisses that defendant from the action. London v. Coopers & Lybrand, 644 F.2d 811 (9th Cir. 1981). Claims in the original complaint ...