Opinion
No. 2:16-cv-1068-MCE-EFB P
06-02-2016
MICHAEL MITCHUM, Plaintiff, v. HONEA, et al., Defendants.
ORDER
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915 and a motion to amend the complaint.
Plaintiff's IFP application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).
Plaintiff also seeks leave to amend the complaint. Rule 15(a)(1) of the Federal Rules of Civil Procedure provides that "[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." Here, plaintiff moved to amend his complaint before any responsive pleading or motion was served. Thus, plaintiff may amend his complaint "once as a matter of course," without the court's leave. Plaintiff's motion to amend is therefore denied as unnecessary.
Within thirty days from the date of this order, plaintiff must file an amended complaint. The amended complaint must be complete in itself without reference to any earlier filed complaint. E.D. Cal. L.R. 220. That is, plaintiff must file a single amended complaint that includes all information relevant to his claim(s). Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
This is because an amended complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the "'amended complaint supersedes the original, the latter being treated thereafter as non-existent.'") (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). --------
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's request to proceed in forma pauperis (ECF No. 4) is granted.
2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance with the notice to the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. Plaintiff's motion to amend (ECF No. 14) is denied as unnecessary.
4. Plaintiff must file his amended complaint within 30 days. The amended complaint must bear the docket number assigned to this case and be titled "First Amended Complaint." If plaintiff files an amended complaint stating a cognizable claim the court will proceed with service of process by the United States Marshal. Failure to comply with this order may result in dismissal. Dated: June 2, 2016.
/s/_________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE