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Billy Henderson v. R. Carmon

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


November 27, 2012

BILLY HENDERSON, PLAINTIFF,
v.
R. CARMON, DEFENDANT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, has commenced a civil rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to the undersigned by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has consented to jurisdiction by United States Magistrate Judge.

Plaintiff has filed a motion to proceed in forma pauperis and has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). (Dkt. No. 2.) Accordingly, the request to proceed in forma pauperis will be granted.

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).

Plaintiff's original complaint was filed on September 10, 2012. On September 24, 2012, however, plaintiff filed a motion to amend his civil rights complaint "to correct an error... in adding a defendant named in the complaint." (Dkt. No. 6.) The Federal Rules of Civil Procedure provide, with respect to amendments:

A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

Fed. R. Civ. P. 15(a)(1). Otherwise, "a party may amend its pleading only with the opposing party's written consent or the court's leave," which shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2).

Pursuant to Fed. R. Civ. P. 15(a), plaintiff may file a first amended complaint at this time. If plaintiff wishes to file a first amended complaint at this time, he shall do so within 30 days of the date of this order. Plaintiff is hereby notified that the court cannot refer to a prior pleading in order to make his first 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 any amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

In accordance with the above, IT IS HEREBY ORDERED THAT:

1. Plaintiff's request for leave to proceed in forma pauperis (Dkt. No. 2) is GRANTED.

2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The fee shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.

3. Plaintiff's motion to amend (Dkt. No. 6) is GRANTED.

4. Within 30 days of the date of this order, plaintiff may file a first amended complaint bearing the number already assigned to this action.

20121127

© 1992-2012 VersusLaw Inc.



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