Opinion
No. CIV S-06-2391 MCE KJM P.
January 9, 2008
ORDER
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed May 8, 2007, plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has now filed an amended complaint.
As previously noted, the court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
In the court's May 8, 2007 order, plaintiff was informed as follows with regard to the content of his amended complaint:
In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 15-220 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. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.
Despite the court's admonition, plaintiff filed an amended complaint on May 21, 2007, then filed a supplement to his complaint on June 4, 2007.
The court will dismiss the amended complaint as well as the supplement and plaintiff will be given leave to file a second amended complaint. With respect to the contents of the second amended complaint, plaintiff is again directed to the court's May 8, 2007 order. If plaintiff's second amended complaint fails to comply with the terms of this order or the court's May 8, 2007 order, the court will recommend that this action be dismissed.
On August 10, 2007, plaintiff filed a motion for a preliminary injunction. Because there is no operative complaint in this action, nor any defendants that have been served, plaintiff's motion will be denied without prejudice to renewal if and when defendants have been served with process. See Local Rule 65-231.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's amended complaint and his supplement to the amended complaint are dismissed.
2. Plaintiff is granted thirty days from the date of service of this order to file a second amended complaint that complies with the requirements of the court's May 8, 2007 order and this order, the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the second amended complaint must bear the docket number assigned this case and must be labeled "Second Amended Complaint"; plaintiff must file an original and two copies of the second amended complaint; failure to file a second amended complaint in accordance with this order will result in a recommendation that this action be dismissed.
3. Plaintiff's August 10, 2007 motion for a preliminary injunction is denied.