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Allen Foster v. Dr. Bhambi

March 28, 2013

ALLEN FOSTER,
PLAINTIFF,
v.
DR. BHAMBI, M.D., ET AL.,
DEFENDANTS.



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

ORDER DISMISSING SECOND AMENDED COMPLAINT FOR VIOLATION OF LOCAL RULE 220, WITH LEAVE TO AMEND (Doc. 22.) ORDER FOR CLERK TO SEND § 1983 COMPLAINT FORM TO PLAINTIFF THIRTY DAY DEADLINE TO FILE THIRD AMENDED COMPLAINT

I. BACKGROUND

Allen Foster ("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 20, 2010. (Doc. 1.) The Court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an order on November 30, 2011, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 10.) On January 24, 2012, Plaintiff filed the First Amended Complaint. (Doc. 14.) On June 4, 2012, the Court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 20.) On June 20, 2012, Plaintiff filed the Second Amended Complaint, which is now before the Court for screening. (Doc. 22.)

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 Afrivolous 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). ANotwithstanding 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 Aa 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 A[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 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 Asufficient 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 678.

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. Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012)(en banc). 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 previous screening order that Aan amended complaint supercedes the original complaint," and must be "complete in itself without reference to any prior pleading." (Second Screening Order, Doc. 20 at 12:20-22.) However, Plaintiff's Second Amended Complaint, filed on June 20, 2012, makes reference to information contained in the First Amended Complaint filed on January 24, 2012. For example, Plaintiff refers the Court to "Exhibit (a) pages marked #15(a)(b)-16 of plaintiff's First Amended Complaint" and "Exhibit (B) pages marked #1-9 of First Amended Complaint." (Second Amended Complaint, Doc. 22 at 3 ¶IV.) 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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