United States District Court, E.D. California
ORDER DISCHARGING ORDER TO SHOW CAUSE AND GRANTING
LEAVE TO AMEND (ECF No. 13)
Barbara A. McAuliffe United States Magistrate Judge
Ricardo Martinez (“Plaintiff”) is a state
prisoner proceeding pro se and in forma pauperis in this
action under 42 U.S.C. § 1983. Plaintiff initiated this
action on June 17, 2016, in the Northern District of
California. (ECF No. 1.) On October 27, 2016, the case was
transferred to this district. (ECF No. 6.) On June 6, 2017,
the Court issued an order to show cause why this action
should not be dismissed as duplicative of Martinez v.
Davey, et al., No. 1:16-cv-00084-LJO-BAM
(“Martinez I”), filed on January 20,
2016. Plaintiff filed the instant response on June 14, 2017.
(ECF No. 14.)
response, Plaintiff states that on October 16, 2016, he
submitted two envelopes by prison mail, each containing an
amended complaint. Plaintiff states that one amended
complaint was filed on December 1, 2016, in Martinez v.
Davey, No. 1:16-cv-1658-MJS (“Martinez
II”). Plaintiff believes that the second of his
amended complaints was not filed, because that one was
regarding the denial of an “Oslen review” only.
Plaintiff attaches copies of 602 third level responses from
May 26, 2016. (ECF No. 14.)
Court notes that the first amended complaint in Martinez
II was not filed until March 9, 2017. (Martinez
II, First Am. Compl., Docket No. 17.) However, a first
amended complaint, signed by Plaintiff on November 22, 2016,
was filed in Martinez I on December 1, 2016.
(Martinez I, First Am. Compl., Docket No. 37, p.
12.) Plaintiff is correct that a first amended complaint was
never filed in the instant case.
Plaintiff notes he previously attempted to file a first
amended complaint, the Court will discharge the order to show
cause and construe Plaintiff's response as a motion to
amend the complaint. Plaintiff is advised that an amended
complaint remains subject to the standards for duplicative
lawsuits, and may not involve the same claims against the
same defendants as his other pending actions. Adams v.
Cal. Dep't of Health Servs., 487 F.3d 684, 688 (9th
Cir. 2007), (“Plaintiffs generally have no right to
maintain two separate actions involving the same subject
matter at the same time in the same court and against the
same defendant.”), overruled on other grounds by
Taylor v. Sturgell, 553 U.S. 880, 904 (2008). Plaintiff
also may not change the nature of this suit by adding new,
unrelated claims in his amended complaint. George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no
amended complaint should be brief, Fed.R.Civ.P. 8(a), but
must state what each defendant did that led to the
deprivation of Plaintiff's constitutional or other
federal rights. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “The inquiry into causation must be
individualized and focus on the duties and responsibilities
of each individual defendant whose acts or omissions are
alleged to have caused a constitutional deprivation.”
Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).
Although accepted as true, the “[f]actual allegations
must be [sufficient] to raise a right to relief above the
speculative level. . . .” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
is reminded that, as stated in the Court's first
informational order, the Court will not serve as a repository
for evidence, and he need not attach exhibits to his
complaint to prove the truth of what is said in the
complaint. For Court screening purposes, facts stated in
complaints are accepted as true. (ECF No. 8, p. 3.) If
Plaintiff feels compelled to submit exhibits with his amended
complaint, he is reminded that such exhibits must be attached
to the complaint and must be incorporated by reference.
Plaintiff is advised that an amended complaint supersedes the
original complaint. Lacey v. Maricopa Cty., 693 F.3d
896, 927 (9th Cir. 2012). Therefore, Plaintiff's amended
complaint must be “complete in itself without reference
to the prior or superseded pleading.” Local Rule 220.
on the foregoing, it is HEREBY ORDERED that:
1. The order to show cause issued on June 6, 2017, is
2. The Clerk's Office shall send to Plaintiff a civil
rights complaint form;
3. Within thirty (30) days from the date of service of this
order, Plaintiff shall file a first amended complaint or a
notice of voluntary dismissal; and
4. If Plaintiff fails to file an amended complaint in
compliance with this order, the Court will dismiss this
action, with prejudice, for failure to state a ...