Opinion
Case No.: 1:18-cv-00272-AWI-SAB (PC)
08-02-2018
KAVASIO K. HALL, Plaintiff, v. VASQUEZ, et.al., Defendants.
ORDER VACATING JUNE 29, 2018 FINDINGS AND RECOMMENDATIONS AND GRANTING PLAINTIFF ONE FINAL OPPORTUNITY TO FILE A SECOND AMENDED COMPLAINT [ECF Nos. 15, 16]
Plaintiff Kavasio K. Hall is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On June 29, 2018, the Court screened Plaintiff's first amended complaint, found that Plaintiff stated a cognizable failure to protect claim against Defendant Agiani and excessive force claim against Defendant Vasquez, and recommended that Defendants Eakir and Ramirez be dismissed from the action for failure to state a cognizable claim for relief. (ECF No. 15.) Plaintiff filed objections to the Findings and Recommendations on July 19, 2018. (ECF No. 16.)
In his objections, Plaintiff elaborates on his claim that Defendants Eakir and Ramirez were deliberately indifferent and/or negligent by failing to collect the razor blades from fellow inmates which resulted in Plaintiff being assaulted. In light of Plaintiff's allegations set forth in his objections and in the interest of justice, the Court will vacate the Findings and Recommendations and grant Plaintiff one additional opportunity to amend the complaint to present a cognizable claim. Plaintiff is advised that a second amended complaint should be brief, Fed R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff's constitutional or other federal rights. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addition, Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level...." Bell Atlantic Corp. v. Trowmbly, 550 U.S. 544, 555 (2007). Finally, Plaintiff is advised that an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled in part on other grounds, Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superseded pleading." Local Rule 220.
Accordingly, it is HEREBY ORDERED that:
1. The Findings and Recommendations, issued June 29, 2018, are vacated;
2. The Clerk of Court is directed to send Plaintiff a blank civil rights complaint form;
3. Plaintiff is granted thirty (30) days from the date of service of this order in which to file his second amended complaint; and
4. If Plaintiff fails to comply with this order, the Court will re-issue the Findings and Recommendations recommending dismissal of Defendants Eakir and Ramirez for failure to state a cognizable claim for relief. IT IS SO ORDERED. Dated: August 2 , 2018
/s/_________
UNITED STATES MAGISTRATE JUDGE