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Richard Ernest Anaya v. Herrington

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 10, 2011

RICHARD ERNEST ANAYA,
PLAINTIFF,
v.
HERRINGTON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING MOTION FOR EXTENSION OF TIME AS MOOT (DOC. 51)

ORDER GRANTING PLAINTIFF LEAVE TO FILE THIRD AMENDED COMPLAINT (DOC. 52)

THIRD AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS

Plaintiff Richard Ernest Anaya ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and Title II of the Americans With Disabilities Act. This action is proceeding on Plaintiff's second amended complaint against Defendants Chen, Herrington, Keldgore, Lopez, and White. Pending before the Court is Plaintiff's objection to the undersigned's July 6, 2011 Order. Doc. 52.*fn1

I. Amending Pleadings

On July 6, 2011, the undersigned denied Plaintiff's motion to amend his pleadings. Plaintiff sought to amend his pleadings to include doctor DiLeo as a defendant. The Court found that Plaintiff's proposed pleadings were from an unrelated transaction or occurrence to the claims in the second amended complaint and thus in violation of Federal Rule of Civil Procedure 20(a)(2). The undersigned denied the motion to amend as futile.

Having re-examined the record and Plaintiff's objections, the undersigned agrees with Plaintiff.*fn2 Plaintiff's allegations all occurred in 2009 against the named Defendants, namely February 9, April 6, and July 13. The claims concerned his removal from single cell status, placement in a cell without grab bars, failure to provide medical treatment for his back, and failure to provide medical treatment for his right knee. Plaintiff's proposed pleadings involve claims against doctor DiLeo for denying him pain medication on February 20, 2010.

Plaintiff's proposed pleadings allege that doctor DiLeo took Plaintiff off his pain medication on February 20, 2010. Pl.'s Mot 2, Doc. 42. Plaintiff was examined on February 26, 2010 for a medical emergency, at which point doctor DiLeo put Plaintiff back on the pain medication. Plaintiff further alleges that doctor DiLeo delayed in providing a specialist to examine Plaintiff's lower back, and prolonged the follow-up care for Plaintiff's knee and back.

Under Federal Rule of Civil Procedure 20(a)(2),"[p]ersons . . . may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transaction or occurrences; and (B) any question of law or fact common to all defendants will arise in the action." While Plaintiff's proposed claims against doctor DiLeo arose in 2010, and not 2009 like the Defendants, it does arise from the same transaction or occurrence pursuant to Federal Rule of Civil Procedure 20(a)(2). Plaintiff's proposed claims concern medical care regarding his lower back and knee, which were found to be cognizable as against Defendant Lopez. Regarding amendments of pleadings, "[t]he court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Thus, the Court will grant Plaintiff leave to amend.

II. Local Rule 220

Under Local Rule 220, every pleading to which an amendment or supplement is permitted as a matter of right or has been allowed by court order shall be retyped and filed so that it is complete in itself without reference to the prior or superseded pleading. No pleading shall be deemed amended or supplemented until this Rule has been complied with. All changed pleadings shall contain copies of all exhibits referred to in the changed pleading.

Plaintiff may not amend his pleadings in a piecemeal fashion. Plaintiff is required to file a third amended complaint which is complete in itself, without reference to the prior or superseded pleading. An amended complaint supersedes the preceding complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 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. Once Plaintiff files his third amended complaint, the Court will re-screen it pursuant to 28 U.S.C. § 1915A. The Court will grant Plaintiff thirty (30) days in which to file his third amended complaint. Failure to timely file or otherwise comply may result in waiver of the opportunity to file a third amended complaint.

III. Conclusion And Order

Based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff is GRANTED leave to file a third amended complaint within thirty (30) days from the date of service of this order;

2. The Court will re-screen Plaintiff's third amended complaint pursuant to 28 U.S.C. § 1915A; and

3. Failure to timely file or otherwise comply with this order may result in waiver of the opportunity to file a third amended complaint.


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