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Tamara Lynn Futrell v. Sacramento County

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 1, 2011

TAMARA LYNN FUTRELL, PLAINTIFF,
v.
SACRAMENTO COUNTY
DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.
TAMARA LYNN FUTRELL, PLAINTIFF,
v.
SUPERIOR COURT OF SACRAMENTO COUNTY, DEFENDANT. TAMARA LYNN FUTRELL, PLAINTIFF,
v.
STATE OF CALIFORNIA
DEPARTMENT OF CHILD PROTECTIVE SERVICES SACRAMENTO COUNTY, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

(TEMP)

As the caption set forth above reflects, plaintiff has filed three separate actions in this court. All three actions are presently assigned to the same district judge and the same magistrate judge, and the actions numbered 2:10-cv-02424 JAM KJN PS and 2:10-cv-02425 JAM KJN PS were previously related through a Related Case Order entered in each of those actions. Examination of the above-captioned actions reveals that they involve common questions of law and/or fact, and, accordingly, the actions are consolidated through this order pursuant to Federal Rule of Civil Procedure 42(a)(2).*fn1

Additionally, the undersigned previously granted plaintiff's application to proceed in forma pauperis in the actions numbered 2:10-cv-02424 JAM KJN PS and 2:10-cv-02425 JAM KJN PS, and also screened the complaints in those actions pursuant to 28 U.S.C. § 1915(e)(2). The undersigned dismissed the complaints in both of those actions without prejudice and provided plaintiff with an opportunity to file an amended complaint in each action. Plaintiff failed to file an amended complaint in either action. Thus, the undersigned could very-well recommend the dismissal of those actions. However, out of an abundance of caution, the undersigned will provide plaintiff with one, final opportunity to file an amended complaint.

Moreover, review of plaintiff's complaint in the action numbered 2:10-cv-03475 JAM KJN PS (TEMP) reveals that this complaint suffers from the same deficiencies identified in the other two actions. Accordingly, the undersigned dismisses plaintiff's complaint in the action numbered 2:10-cv-03475 JAM KJN PS (TEMP) without prejudice pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff is directed to the screening orders entered in the other actions, which plaintiff should review prior to filing an amended complaint. (See Futrell v. Sacramento County Dep't Health & Human Servs., 2:10-cv-02424 JAM KJN PS, Order, Feb. 14, 2011, Dkt. No. 4; Futrell v. Sacramento County Superior Court, 2:10-cv-02425 JAM KJN PS, Feb. 14, 2011, Dkt. No. 4.)

In light of the consolidation of the three cases effectuated by this order, plaintiff shall have 30 days to file a single amended complaint that addresses all of her claims against all of the defendants against whom plaintiff believes she can state claims. Plaintiff shall file that amended complaint in the action numbered 2:10-cv-02424 JAM KJN PS.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's complaint filed in the action numbered 2:10-cv-03475 JAM KJN PS (TEMP) is dismissed without prejudice.

2. The actions numbered 2:10-cv-02424 JAM KJN PS, 2:10-cv-02425 JAM KJN PS, and 2:10-cv-03475 JAM KJN PS (TEMP), which are already assigned to District Judge John A. Mendez and Magistrate Judge Kendall J. Newman, are consolidated pursuant to Federal Rule of Civil Procedure 42(a).

3. Henceforth, the caption on all documents filed in the consolidated cases shall be shown as No. 2:10-cv-02424 JAM KJN PS. All future filings shall occur ONLY in the action numbered 2:10-cv-02424 JAM KJN PS.

4. The Clerk of Court is directed to administratively close Case Nos. 2:10-cv-02425 JAM KJN PS, and 2:10-cv-03475 JAM KJN PS (TEMP).

5. Plaintiff is granted 30 days from the date of this order to file a first amended complaint that is complete in itself and addresses all of her claims against all defendants . The first amended complaint must bear the docket number 2:10-cv-02424 JAM KJN PS and must be entitled "First Amended Complaint." Plaintiff must file an original and two copies of the amended complint. Failure to timely file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed.*fn2

Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to make an amended complaint complete. Eastern District Local Rule 220 requires that an amended complaint be complete in itself. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) ("The amended complaint supersedes the original, the latter being treated thereafter as non-existent."). Accordingly, once plaintiff files an amended complaint, the original no longer serves any function in the case. Therefore, "a 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), and defendants not named in an amended complaint are no longer defendants.Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

6. The Clerk of Court is directed to file this order in the actions numbered 2:10-cv-02424 JAM KJN PS, 2:10-cv-02425 JAM KJN PS, and 2:10-cv-03475 JAM KJN PS (TEMP).

IT IS SO ORDERED.


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