Opinion
Case No. 2:07-cv-02343-LDG
02-23-2012
FLOYD D. FUENTES, Plaintiff, v. R. SEARS, et al., Defendants.
ORDER
Previously, the Court dismissed plaintiff's claims against defendant Bishop, with leave to amend. In so doing, the Court discussed the deficiencies of plaintiff's complaint against the defendant. Although plaintiff filed an amended complaint raising claims with respect to defendant Bishop, it remains deficient. Accordingly, the Court will dismiss defendant Bishop with prejudice.
The Court would note that, in amending his complaint, the plaintiff alleged claims only against defendant Bishop. By so doing, the plaintiff effectively dismissed his claims against the remaining defendants. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. The Court notes, however, that it had previously determined that plaintiff had alleged arguable claims against the remaining defendants. The Court further notes that, in previously granting leave to plaintiff to amend his claims as to defendant Bishop, the Court did not advise the plaintiff that the amended complaint must be complete in itself. The record is not clear whether plaintiff, in filing his second amended complaint, intended to dismiss his claims against the remaining defendants and allege claims solely against defendant Bishop, or whether the plaintiff erroneously believed that his first amended complaint against the remaining defendants would not be superseded by his second amended complaint.
Accordingly,
THE COURT ORDERS that Plaintiff's claims against Bishop are dismissed with prejudice for the reasons discussed above and for the reasons discussed in the Court's prior orders.
THE COURT FURTHER ORDERS that Plaintiff is granted leave to file an amended complaint within thirty days from the date of service of this Order. This leave to file an amended complaint is limited to only permit plaintiff to restate his previous claims against those defendants who have not been dismissed from this action. Failure to file an amended complaint that is limited to and consistent with the claims and defendants alleged in the First Amended Complaint who have not been dismissed will result in the dismissal of this action with prejudice.
Upon filing an amended complaint or expiration of the time allowed therefor, the court will make further orders for service of process upon some or all of the defendants.
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Lloyd D. George
United States District Judge