The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER GRANTING MOTIONS TO AMEND (Doc. 11, 13 & 18)
ORDER DENYING MOTION TO EXPEDITE THE SCREENING OF THE COMPLAINT (Doc. 14)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT PLAINTIFF'S MOTIONS FOR A TEMPORARY RESTRAINING ORDER BE DENIED (Doc. 13 & 18)
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has several motions pending before the Court. The Court addresses each motion below.
Plaintiff has filed three motions to amend. First, on September, 22, 2010, Plaintiff filed a motion to add new defendants and claims. (Doc. 11.) Second, on October 18, 2010, Plaintiff filed a motion to include in his original complaint a retaliation claim against Defendants for transferring him to the California Institution for Men. (Doc 13 at 1-2.) Plaintiff also seeks to add new claims regarding his conditions of confinement at the California Institution for Men, including the fact that he is housed in a cell with black mold and rodents, prison officials improperly processed his inmate grievance regarding his acquired immune deficiency syndrome ("AIDS"), prison officials failed to protect him, he has been unlawfully confined in a disciplinary cell unit, he receives inadequate recreation time, he is not afforded adequate legal materials or law library access, and his appeals to the warden regarding his classification status are ignored. (Id. at 2-4.) Third, on January 5, 2011, Plaintiff filed a motion to include claims regarding the inadequate medical treatment he is currently receiving at California State Prison, Los Angeles County. (Doc. 18 at 1-3.)
The Court has yet to authorize service of Plaintiff's original complaint, as it has yet to be screened. Thus, at this juncture, Plaintiff may amend his pleadings as a matter of right. See Fed. R. Civ. P. 15(a). However, if Plaintiff elects to amended his complaint, he is advised of the following. First, prisoners are required to exhaust all available administrative remedies prior to filing suit. See 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007). Claims that are unexhausted are subject to dismissal without prejudice. See Wyatt v. Terhune, 315 F.3d 1108, 1117-20 (9th Cir. 2003). Thus, Plaintiff should not amend his complaint to include new claims unless he has already exhausted his administrative remedies with respect to those claims.
Second, "[u]nrelated claims against different defendants belong in different suits . . . ." George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Thus, to the extent that Plaintiff's "new" claims are unrelated to the allegations in the original complaint, Plaintiff should not amend his pleadings to include those claims. Instead, Plaintiff should file a new civil rights action and assert his claims therein.*fn1 At first blush, it appears to the Court that most, if not all, of Plaintiff's "new" claims fall into this category.
Third, once Plaintiff files an amended complaint his original pleadings are superceded and no longer serve a function in the case. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, the amended complaint must be "complete in itself without reference to the prior or superceded pleading." Local Rule 220. "All causes of action alleged in [the] original complaint which are not [re-]alleged in [the] amended complaint are waived." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citations omitted).
II. MOTION TO EXPEDITE SCREENING
On November 1, 2010, Plaintiff filed a motion to expedite the screening of his complaint. (Doc. 14.) Plaintiff is advised in this regard that the Eastern District of California has, by far, the highest weighted caseload per judge in the entire country. The Court will screen and process his complaint in due course.
III. MOTIONS FOR PRELIMINARY INJUNCTIONS
Also pending before the Court are two requests for preliminary injunctions. In his October 18, 2010 motion to amend, Plaintiff asks the Court to issue a temporary restraining order, to enjoin the alleged problems at the California Institute for Men. (Doc. 13 at 4-5.) In his January 5, 2011 motion, Plaintiff requests the Court to issue a temporary restraining order to compel prison officials at ...