Opinion
No. CIV S-07-0658-RRB-CMK-P.
August 15, 2007
ORDER
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On June 19, 2007, this court issued an order (Doc. 12) granting plaintiff's request to proceed in forma pauperis. Plaintiff has since filed three additional applications to proceed in forma pauperis. As this request has already been granted, these applications are moot and will be disregarded.
Also on June 19, 2007, in the same order, this court found plaintiff had filed two amended complaints since his original complaint was filed on April 5, 2007. Plaintiff was provided the opportunity to elect which amended complaint he wished to have as the operative pleading. Plaintiff was ordered to file a notice with the court electing which amended complaint he wanted to proceed on within 30 days. In response, plaintiff filed a request to supplement his original complaint with his two amended complaints.
The Federal Rules of Civil Procedure provide that a party may amend his or her pleading ". . . once as a matter of course at any time before a responsive pleading is served." Fed.R.Civ.P. 15(a). By filing his first amended complaint, plaintiff has already availed himself of his ability to amend once as of right. However, as stated in this court's previous order, rather than striking plaintiff's second amended complaint for failure to obtain leave of court, plaintiff will be provided the opportunity to elect which amended complaint he wishes to be the operative pleading in this action, or file a third amended complaint. Plaintiff is cautioned that failure to comply with this order may result in dismissal of the entire action. See Local Rule 11-110.
Plaintiff is informed that, as a general rule, an amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, all claims alleged in the original complaint which are not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make plaintiff's amended complaint complete. See Local Rule 15-220. An amended complaint must be complete in itself without reference to any prior pleading. See id. Therefore, plaintiff's request to supplement his amended complaints will be denied, but he will be granted 30 days to file a third amended complaint or choose which amended complaint he wishes to be the operative pleading.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's second (Doc. 15), third (Doc. 17) and fourth (Doc. 18) request for leave to proceed in forma pauperis are disregarded;
2. Plaintiff's request to supplement his amended complaints is denied;
3. Within 30 days of the date of this order, plaintiff shall file a third amended complaint or file a notice with the court electing whether he wishes to proceed on the April 18, 2007 first amended complaint (Doc. 4) or the May 14, 2007 second amended complaint (Doc. 7).