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Robert Herrera v. B. Wheeler

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


May 9, 2011

ROBERT HERRERA, PLAINTIFF,
v.
B. WHEELER, ET AL., DEFENDANTS.

ORDER

Plaintiff, a state prisoner proceeding pro se, is seeking relief pursuant to 42 U.S.C. § 1983. On March 17, 2011, the court issued an order requiring plaintiff to file a notice with the court indicating whether he wished to pursue this action or voluntarily dismiss it. Plaintiff had previously filed a motion for voluntary dismissal explaining that he was unable to complete his application to proceed in forma pauperis. However, the court had actually received plaintiff's properly completed application to proceed in forma pauperis several days prior to him filing that motion.

In response to the court's order, plaintiff has informed the court that he wishes to pursue this action but would like to be granted leave to file an amended complaint. Under the circumstances of this case, the court will deem plaintiff's motion for voluntary dismissal withdrawn. In addition, the court will deny plaintiff's motion for leave to file an amended complaint as unnecessary. Plaintiff is advised that the Federal Rules of Civil Procedure provide that a party may amend his or her pleading "once as a matter of course at any time before a responsive pleading is served." Fed. R. Civ. P. 15(a). No responsive pleading has been served in this matter, so plaintiff may file an amended complaint without leave of the court at this time. However, plaintiff is cautioned that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. 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). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for voluntary dismissal (Doc. No. 11) is deemed withdrawn;

2. Plaintiff's motion for leave to file an amended complaint (Doc. No. 14) is denied as unnecessary; and

3. Plaintiff shall file an amended complaint within thirty days of the date of service of this order.

20110509

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