United States District Court, S.D. California
ORDER: 1) GRANTING PLAINTIFF'S MOTION FOR LEAVE
TO FILE AN AMENDED COMPLAINT [ECF NO. 20] AND 2) DENYING
DEFENDANTS' MOTION TO DISMISS PURSUANT TO FED. R. CIV. P.
12(B)(6) WITHOUT PREJUDICE AS MOOT [ECF NO.
Ted Moskowitz, Chief judge United States District Court
ARMENTA (“Plaintiff”), is currently incarcerated
at California State Prison, Los Angeles County
(“CSP-LAC”) in Lancaster, California, and is
proceeding pro se in this civil action filed pursuant to 42
U.S.C. § 1983. In his original Complaint, Plaintiff
claimed prison officials at Richard J. Donovan Correctional
Facility (“RJD”) in San Diego, California,
violated his Eighth and Fourteenth Amendment rights while he
was incarcerated there in 2015 by charging him with, finding
him guilty of, and punishing him for use of a controlled
substance in violation of Cal. Code Regs., tit. 15 §
3016(a). Plaintiff claimed Defendants did so with
“deliberate indifference” to medical evidence
showing he had been prescribed Tylenol with codeine, which he
argued accounted for the positive urinalysis results that
initiated his disciplinary proceedings. (ECF No. 1 at 8-15.)
April 4, 2017, the Court granted Plaintiff leave to proceed
in forma pauperis (“IFP”), denied his Motion to
Appoint Counsel, screened his Complaint pursuant to 28 U.S.C.
§ 1915(e)(2) and § 1915A, and directed the U.S.
Marshal to effect service upon the Defendants pursuant to 28
U.S.C. § 1915(d) and Fed.R.Civ.P. 4(c)(3) (ECF No. 4).
See Puett v. Blandford, 895 F.2d 630, 634 (9th Cir.
1990) (“An incarcerated pro se plaintiff proceeding in
forma pauperis is entitled to rely on the U.S. Marshal for
service of summons and complaint”).
U.S. Marshal successfully executed service upon Defendants
Stratton, Salinas, Sanchez, Paramo, Frost, Covel, Zamora,
Williams, and Lopez (ECF Nos. 7-15), but the summons was
returned unexecuted as to Defendant G. Murphy on May 18, 2017
(ECF No. 6), with a note indicating that “per
Litigation Coordinator, … they are unable to confirm
that there is now or ever has been a G. Murphy employed at
R.J. Donovan and they are not authorized to accept service on
his/her behalf.” (ECF No. 6). No proof of service,
either executed or unexecuted has yet to be entered on behalf
of the remaining Defendant, G. Wiley.
19, 2017, the served Defendants filed a Motion to Dismiss
Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6)
(ECF No. 16). Defendants served Plaintiff with a copy of
their Motion via U.S. Mail on the same day (ECF No. 16-1 at
22, 2017, the Court calendared Defendants' Motion for
disposition without oral argument on August 18, 2017,
directed Plaintiff to file his Opposition, or Notice of
Non-Opposition, by August 4, 2017, and granted Defendants
until August 11, 2017 to file a Reply. (See ECF No.
18 at 2.)
11, 2017, and in lieu of an Opposition, Plaintiff filed a
Motion for Leave to File an Amended Complaint (ECF No. 20),
signed, served upon Defendants' counsel, and dated July
3, 2017. (Id. at 18.) Plaintiff attaches to his
Motion new “Supporting Facts” (id. at
5-9), and two new exhibits, but he also asks to “file
an Amended Complaint to add new information, ” and
“new claims for relief” as to certain Defendants
and other portions of his original pleading. Id. at
2-4. Plaintiff has also filed a copy of a letter he wrote to
the U.S. Marshal regarding the status of service upon
Defendants Murphy and Wiley. (Id. at 17.)
Plaintiff's Motion for Leave to Amend
to Fed.R.Civ.P. 15(a), a party “may amend its pleading
once as a matter of course … within 21 days after
service of a motion under Rule 12(b)…”
Fed.R.Civ.P. 15(a)(1)(B). “In all other cases, a party
may amend its pleading only with the opposing party's
written consent or the court's leave.” Fed.R.Civ.P.
case, Plaintiff did not require the Court's leave to
amend because at the time he filed and served his Motion on
July 3, 2017, the 21-day period for amending as a matter of
course, after having been served with Defendants' Motion
to Dismiss pursuant to Fed.R.Civ.P. 15(a)(1)(B), had yet to
expire. See ECF No. 20 at 1, 18; ECF No. 16-1 at 25;
Houston v. Lack, 487 U.S. 266, 270-72 (1988) (notice
of appeal filed by a pro se prisoner is deemed to be
“filed” when it is delivered to prison
authorities for forwarding to the district court);
Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir.
2009) (“Houston mailbox rule applies to §
1983 suits filed by pro se prisoners.”).
the Court notes that the documents attached to
Plaintiff's Motion, while some pages are captioned as his
“Proposed Amended Complaint, ” see ECF
No. 20 at 5-10, do not constitute an Amended Complaint which
is complete in itself. See S.D. Cal. CivLR 15.1
(requiring that “[e]very pleading to which amendment is
permitted as a matter of right or has been allowed by court
order, must be complete in itself without reference to the
superseded pleading.”). It is well-established that an
“amended complaint supersedes the original, the latter
being treated thereafter as non-existent.”
Valadez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th
Cir. 2011) (citations omitted). Once Plaintiff amends, his
original pleading no longer serves any function in the case.
Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).
in an amended complaint, as in an original complaint, each
claim and the involvement of each defendant must be alleged;
each pleading must include a “short and plain statement
of the grounds for the court's jurisdiction, ” a
“short and plain statement of the claim showing that
the pleader is entitled to relief, ” and “a
demand for the relief sought.” Fed.R.Civ.P.
8(a)(1)-(3); see also Ashcroft v. Iqbal, 556 U.S.
662, 677-78 (2009); Landers v. Quality Communications,
Inc., 771 F.3d 638, 640-41 (9th Cir. 2014).
currently submitted, Plaintiff's Motion for Leave to
Amend (ECF No. 20) does not, without more, qualify as an
Amended Complaint pursuant to Local Rule 15.1; nor does it
comply with Fed.R.Civ.P. 8. For example, Plaintiff does not
include the names of the Defendants he seeks to sue, nor does
he indicate the capacity in which he seeks to sue them.
See Fed. R. Civ. P. 10(a) (“The title of the
complaint must name all the parties.”); Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (noting
that an earlier complaint “cannot have the effect of
filling in the names of the defendants in [a] later ‘et
al.' pleading.”). Moreover, while Plaintiff
apparently seeks to add an additional statement of
facts and two exhibits to his original complaint, and refers
to a list of “paragraphs” he wishes to
intersperse into that pleading involving “new
information, ” and “new claims for relief,
” (ECF No. 20 at 2-4), he may not amend by
interlineation, and instead may amend pursuant to Rule 15
only by filing and serving upon Defendants one single Amended
Complaint, which is complete by itself, and without reference
to any previous pleading. See Flood v. ...