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Pierce v. Lopez

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 28, 2010

SEBREN A. PIERCE, PLAINTIFF,
v.
R. LOPEZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER GRANTING MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT (Doc. 9) FIRST AMENDED COMPLAINT DUE IN THIRTY DAYS

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is plaintiff's May 14, 2010, motion for leave to file a first amended complaint.

Federal Rule of Civil Procedure 15(a) authorizes a plaintiff to amend his complaint once as a matter of course if no responsive pleading has been filed. There has been no service of process in this case, and no defendant has entered an appearance. Plaintiff's motion shall therefore be granted.

Plaintiff's amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff's constitutional or other federal rights, Hydrick, 500 F.3d at 987-88. Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level...." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007) (citations omitted).

Plaintiff is also advised that an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superceded pleading," Local Rule 220. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

Accordingly, based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff's motion for leave to file an amended complaint is granted;

2. The Clerk's Office shall send Plaintiff a complaint form;

3. Within thirty days from the date of service of this order, plaintiff shall file a first amended complaint;

4. Plaintiff may not add any new, unrelated claims to this action via his amended complaint and any attempt to do so will result in an order striking the amended complaint; and

5. If plaintiff fails to file an amended complaint, the Court will screen the original complaint.

IT IS SO ORDERED.

20100528

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