Opinion
CASE NO. 3:19-cv-06241-BHS-JRC
03-10-2020
TERRELL E. JONES, Plaintiff, v. A. MASTANDREA, Defendant.
ORDER GRANTING MOTION TO AMEND AND DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT
This matter is before the Court on plaintiff's motion to amend and first amended complaint. See Dkts. 7, 8. The Court grants plaintiff's motion to amend, as set forth herein.
In January 2020, the Court reviewed plaintiff's complaint under 42 U.S.C. § 1983 and issued an order to show cause or amend the complaint if plaintiff wished to proceed on his claims against Pierce County. See Dkt. 6. Specifically, the Court advised plaintiff that although solely for screening purposes, he had stated a colorable claim against a defendant (a jail sergeant) in his personal capacity, plaintiff had not stated a claim against Pierce County or the individual defendant in his official capacity. See Dkt. 6, at 2. The Court directed plaintiff that if he did not amend his complaint, it would proceed solely on the claims against the individual defendant in his personal capacity. See Dkt. 6.
In response, plaintiff filed an amended complaint containing only claims against the individual defendant. See Dkt. 7. Plaintiff then filed a motion to amend his complaint a second time, to include "[t]he City [sic] of Pierce." Dkt. 8.
Plaintiff's complaint has not yet been served, so that he may amend it as a matter of right. See Fed. R. Civ. P. 15. Therefore, the Court grants plaintiff's motion to amend and orders him to provide an amended complaint on or before April 3, 2020, on the form provided by the Court.
The Court cautions plaintiff that it will screen his second amended complaint as required by 28 U.S.C. § 1915A. Plaintiff is further warned that a claim against a municipality is not cognizable under § 1983 unless it meets the standards set forth for civil rights claims against local governments explained in the Court's previous screening order. See Dkt. 6, at 4-7.
Plaintiff's second amended complaint must contain a "short, plain statement telling the Court: (1) each constitutional right that plaintiff believes was violated; (2) the name or names of the person or persons who violated the right; (3) exactly what each individual or entity did or failed to do; (4) how the action or inaction of each individual or entity is connected to the violation of plaintiff's constitutional rights; and (5) what specific injury plaintiff suffered because of the individuals' conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). The second amended complaint must be legibly written or typed in its entirety, it should be an original and not a copy, it should contain the same case number, and it may not incorporate any part of the first two complaints by reference. The second amended complaint will act as a complete substitute for the first two complaints and not as a supplement. An amended complaint supersedes all previous complaints. 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 (9th Cir. 2012). Therefore, the second amended complaint must be complete in itself, and all facts and causes of action alleged in the first two complaints that are not alleged in the second amended complaint are waived. Forsyth, 114 F.3d at 1474.
The Clerk will send plaintiff the appropriate form for a 42 U.S.C § 1983 complaint, a copy of this Order, and a copy of the Court's prior screening order (Dkt. 6). Plaintiff's failure to submit his second amended complaint or otherwise comply with this Order on or before April 3, 2020 shall be deemed a failure to prosecute and may result in dismissal of this matter.
Dated this 10th day of March, 2020.
/s/_________
J. Richard Creatura
United States Magistrate Judge