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Petillo v. Gallagher

United States District Court, E.D. California

April 3, 2018

ISAIAH J. PETILLO, Plaintiff,
v.
GALLAGHER, et al., Defendants.

          ORDER STRIKING PLAINTIFF'S REQUEST AS IMPROPERLY FILED IN THIS CASE (ECF No. 9.) ORDER INFORMING PLAINTIFF HE HAS LEAVE TO AMEND THE COMPLAINT ONCE AS A MATTER OF COURSE THIRTY DAY DEADLINE TO EITHER: (1) FILE FIRST AMENDED COMPLAINT OR (2) NOTIFY THE COURT THAT HE WISHES TO PROCEED WITH THE ORIGINAL COMPLAINT ORDER FOR CLERK TO SEND COMPLAINT FORM TO PLAINTIFF

          Gary S. Austin UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         Isaiah J. Patillo (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On February 12, 2018, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) The Complaint awaits the Court's requisite screening under 28 U.S.C. § 1915A. No other parties have appeared in this case.

         Plaintiff is also proceeding with another pending civil rights case, case number 1:16-cv-00488-AWI-MJS-PC; Petillo v. J.L. Peterson (Petillo I), which was filed with this court on April 7, 2016. (Court Record.) On January 2, 2018, Plaintiff filed a request in Petillo I for the court to accept twenty-two pages of attached documents. (Petillo I, ECF No. 42.) On March 26, 2018, Plaintiff notified the court in Petillo I that he meant to file his January 2, 2018, request in the present case, 1:18-cv-00217-GSA-PC; Petillo v. X. Galliger (Petillo II). (Petillo I. ECF No. 47.) Thereafter, on Plaintiff's instructions, Plaintiff's request was filed in this case. (Petillo II, ECF No. 9.)

         Plaintiff's request for the court to accept documents is now before the court.

         II. PLAINTIFF'S REQUEST

         Plaintiff has represented to the court that on January 2, 2018, he filed a request in Petillo I, but instead meant to file the request in Petillo II. Plaintiff's representation is a little mystifying. Moreover, it would have been difficult for Plaintiff to have filed his request in Petillo II on January 2, 2018, as Petillo II was not filed until February 28, 2018. Therefore, Plaintiff's January 2, 2018, request shall be stricken[1] from the record as improperly filed in this case.

         III. AMENDING THE COMPLAINT - RULE 15(a) AND LOCAL RULE 220

         To the extent that Plaintiff wishes to amend the Complaint in this action by adding exhibits to the Complaint, Plaintiff must first file a new First Amended Complaint which is complete within itself. Under Local Rule 220, [2] Plaintiff may not amend the Complaint by adding information piecemeal after the Complaint has already been filed. To add information or exhibits, or to correct an error in the Complaint, Plaintiff must file a new First Amended Complaint which is complete within itself.

         Plaintiff may file an amended complaint at this stage of the proceedings without leave of court. Under Rule 15(a) of the Federal Rule of Civil Procedure, a party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, a party may amend only by leave of the court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Fed.R.Civ.P. 15(a). Here, because Plaintiff has not previously amended the Complaint and no responsive pleading has been served in this action, Plaintiff has leave to file an amended complaint as a matter of course. Plaintiff shall be granted thirty days in which to file a First Amended Complaint, making the needed changes.

         Plaintiff must demonstrate in his amended complaint how the conditions complained of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The amended complaint must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 36 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

         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, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

         Plaintiff should note that although he has the opportunity to amend, it is not for the purpose of adding allegations of events occurring after March 27, 2017, the date the initial Complaint was filed. Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended complaint. ...


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