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Kenneth W. Royster v. California Department of Corrections

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 28, 2011

KENNETH W. ROYSTER,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER GRANTING MOTION TO PLAINTIFF'S AMEND (ECF No. 11)

AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

Plaintiff Kenneth W. Royster ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the Magistrate Judge handling all matters in this action. (ECF No. 5.)

Plaintiff filed his initial complaint on June 27, 2011 alleging violations of his Fourth Amendment right to be free from unreasonable searches. The Court has yet to screen Plaintiff's complaint or order service.

Before the Court is Plaintiff's August 24, 2011 Motion to Add Grievance as Facts and Proof and Relief for Wrong Doing. (ECF No. 11.) Plaintiff seeks to add additional grievance forms to his Complaint to further explain the harm Defendants' actions have caused him.

The Federal Rules of Civil Procedure state that leave to amend shall be freely given. Fed. R. Civ. P. 15(a)(2). Thus, Plaintiff's Motion is GRANTED.

However, the Court will not simply add the allegations contained in the instant Motion to Plaintiff's original complaint. Plaintiff must file an amended complaint that includes all of the facts that make up his claim. 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. The Court will not refer to or consider any matter in the original complaint. Therefore, in an amended complaint, each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled "Amended Complaint," refer to the appropriate case number, and be an original signed under penalty of perjury.

Within thirty days of service of this order, Plaintiff shall either file his amended complaint or notify the Court of his willingness to proceed with his original complaint. Failure to comply with this deadline may result in dismissal of this action.

From the Court's perspective, it does not appear that the amendment proposed will necessarily improve the pleading; it may simply make it more cumbersome and difficult for the Court to analyze. Plaintiff may be better advised to notify of his willingness to proceed, at least through the Court's initial screening order, on the existing pleading.

IT IS SO ORDERED.

20111228

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