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Adrian Moon v. Amend Maurice Junious

October 24, 2012

ADRIAN MOON, PLAINTIFF,
v.
AMEND MAURICE JUNIOUS, ET AL., DEFENDANTS.



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

SCREENING ORDER ORDER DISMISSING SECOND AMENDED COMPLAINT UNDER LOCAL RULE 220, WITH LEAVE TO (Doc. 36.)

ORDER FOR CLERK TO SEND PLAINTIFF A § 1983 COMPLAINT FORM THIRTY DAY DEADLINE TO FILE THIRD AMENDED COMPLAINT

I. BACKGROUND

Adrian Moon ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was initiated by civil Complaint filed on January 20, 2012. (Doc. 1.) On February 8, 2012, Plaintiff filed the First Amended Complaint. (Doc. 9.) On March 9, 2012, the Court granted Plaintiff leave to file a Second Amended Complaint. (Doc. 14.) On August 6, 2012, Plaintiff filed the Second Amended Complaint, which is now before the Court for screening. (Doc. 36.)

II. SCREENING REQUIREMENT

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.

III. LOCAL RULE 220 - CHANGED PLEADINGS

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."

L. R. 220. 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, an amended complaint must be complete in itself without reference to any previous complaint, and each claim and the involvement of each defendant must be sufficiently alleged.

Plaintiff was advised in the Court's order of March 9, 2012 that "an amended complaint supercedes the original complaint" and that his Second Amended Complaint must be "complete in itself without reference to the prior or superceded pleading." (Doc. 14 at 2 ¶II.) However, Plaintiff's Second Amended Complaint makes reference to information contained in the original Complaint, stating, "Plaintiff(s) realleges and incorporate the original verified complaint filed on Jan. 20, 2012 (Doc 1) by this reference March 22, 2011." (Doc. 36 at 4 ¶1.) Therefore, the Second Amended Complaint fails to comply with Local Rule 220 and shall be dismissed, with leave to amend.

IV. CONCLUSION AND ORDER

Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend 'shall be freely given when justice so requires.'" Therefore, although the Court shall dismiss the Second Amended Complaint for failure to comply with Local Rule 220, Plaintiff shall be provided with time to ...


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