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Lawrence L. Marsh v. M. Vegianelli

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 2, 2011

LAWRENCE L. MARSH,
PLAINTIFF,
v.
M. VEGIANELLI, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING LEAVE TO AMEND (Doc. 47.) ORDER RE REQUEST FOR ACKNOWLEDGMENT OF RECEIPT OF DOCUMENT ORDER DENYING REQUEST FOR FREE COPIES (Doc. 46.) THIRTY DAY DEADLINE FOR PLAINTIFF TO EITHER: (1) FILE FOURTH AMENDED COMPLAINT, OR (2) NOTIFY COURT HE DOES NOT WISH TO AMEND / COMPLAINT

I. BACKGROUND

Lawrence L. Marsh ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on July 17, 2009. (Doc. 1.) On August 19, 2009, Plaintiff consented to the jurisdiction of a United States Magistrate Judge, and no other party has appeared in this action. (Doc. 5.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3). This action now proceeds on the Third Amended Complaint, filed on July 7, 2011, which awaits screening by the Court. (Doc. 45.)

On August 1, 2011 and September 1, 2011, Plaintiff filed motions for the Court to acknowledge that the Court has received his Third Amended Complaint. Plaintiff also requested a free copy of the Third Amended Complaint. Plaintiff also requested the Court to amend the Third Amended Complaint by adding two words to the text.

II. MOTION TO AMEND

Local Rule 220 provides, in part:

Unless prior approval to the contrary is obtained from the Court, 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allowed by court order shall be retyped and filed so that it is complete in itself without reference to the prior or superseded pleading.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 requests the Court to add two words to the text of the Third Amended Complaint which Plaintiff filed on July 7, 2011. Plaintiff may not amend the complaint in this manner. To add to the complaint, Plaintiff must file a new, amended complaint. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint 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.

Under Rule 15(a) of the Federal Rule of Civil Procedure, a party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, a party may amend only by leave of the court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). Because Plaintiff has already amended his complaint three times, he requires leave of court to file a Fourth Amended Complaint. The Court shall allow Plaintiff to file a Fourth Amended Complaint to add text, if he wishes.

If Plaintiff does not wish to file a Fourth Amended Complaint, he must inform the Court in writing within thirty days.

Should Plaintiff choose to amend the complaint, Plaintiff must file a Fourth Amended Complaint within thirty days. Plaintiff must demonstrate in his amended complaint how the conditions complained of have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff should note that although he has the opportunity to amend, it is not for the purpose of adding new defendants for unrelated claims. In addition, plaintiff should take care to include only those claims that have been administratively exhausted. The amended complaint, if any, should be clearly and boldly titled "FOURTH AMENDED COMPLAINT," refer to case number 1:09-cv-01243-GSA-PC, and be an original signed under penalty of perjury.

II. REQUEST FOR ACKNOWLEDGMENT OF RECEIPT AND FOR FREE COPY

Plaintiff requests the Court to acknowledge receipt of his Third Amended Complaint. Plaintiff is advised that due to the large number of civil actions pending before the Court, the Court is unable to respond in writing to individual inquiries regarding the status of a case or to acknowledge receipt of documents. Plaintiff is advised that as long as he keeps the court apprised of his current address, he will receive all court decisions which might affect the status of his case.

See Local Rule 183(b).

Plaintiff also requests the Court to send him a free copy of the Third Amended Complaint. Plaintiff claims that he mailed the Third Amended Complaint to the Court, together with a self-addressed, stamped envelope for return of a conformed copy of the Third Amended Complaint, but that he has not received anything back.

Plaintiff's Third Amended Complaint was received and filed by the Court on July 7, 2011. The Clerk would not have returned a conformed copy of the Third Amended Complaint to Plaintiff unless he submitted two copies of the Third Amended Complaint and a large enough envelope with sufficient postage to mail back a conformed copy. The Clerk does not ordinarily provide free copies of documents to parties. The Clerk charges $.50 per page for copies of documents. See 28 U.S.C. § 1914(a). Copies up to 20 pages may be made by the Clerk's Office at this Court upon written request and prepayment of the copy fees. The fact that the Court has granted leave for Plaintiff to proceed in forma pauperis does not entitle him to free copies of documents from the Court. Under 28 U.S.C. § 2250, the Clerk is not required to furnish copies without cost to an indigent petitioner except by order of the judge.

The Third Amended Complaint is sixteen pages long. To request a copy, Plaintiff must submit a request in writing, a large envelope affixed with sufficient postage, and prepayment of copy costs to the Clerk. Plaintiff is advised that in the future, he should keep a copy of any document he submits to the Court.

III. CONCLUSION

Based on the foregoing, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to amend is GRANTED;

2. Within thirty days from the date of service of this order, Plaintiff must either:

(1) File a Fourth Amended Complaint as instructed by this order, or

(2) Notify the Court in writing that he does not wish to file a Fourth Amended Complaint;

3. Plaintiff's request for a free copy of the Third Amended Complaint is DENIED without prejudice; and

4. Plaintiff's failure to comply with this order may result in the dismissal of this action without further notice.

IT IS SO ORDERED.

20110902

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