Opinion
No. CIV S-07-0751-FCD-CMK-P.
December 13, 2007
ORDER
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion for a further extension of time (Doc. 14).
On August 20, 2007, the court issued an order addressing plaintiff's complaint. The court addressed defects in the complaint and stated:
Because it is possible that some of the deficiencies identified in this order may be cured by amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 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, following dismissal with leave to amend, 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.
If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how each named defendant is involved, and must set forth some affirmative link or connection between each defendant's actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164 , 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Because some of the defects identified in this order cannot be cured by amendment, plaintiff is not entitled to leave to amend as to such claims. In particular, plaintiff's claim of inadequate medical treatment cannot be saved through amendment because it is based on alleged negligence. Plaintiff, therefore, now has the following choices: (1) plaintiff may file an amended complaint which does not allege the claims identified herein as incurable, in which case such claims will be deemed abandoned and the court will address the remaining claims; or (2) plaintiff may file an amended complaint which continues to allege claims identified as incurable, in which case the court will issue findings and recommendations that such claims be dismissed from this action, as well as such other orders and/or findings and recommendations as may be necessary to address the remaining claims.
Further, because the complaint appears to otherwise state a cognizable claim against defendant Lea based on failure to protect, plaintiff has a third option — he may choose not to file any amended complaint and stand on the original complaint. If no amended complaint is filed within the time allowed therefor, the court will issue findings and recommendations that the claims identified herein as defective be dismissed, as well as such further orders as are necessary for service of process on defendant Lea.
Plaintiff now seeks a further 60-day extension of time to file a first amended complaint. Good cause appearing therefor, the request will be granted. This shall be the last extension of time. If plaintiff does not file a first amended complaint with the time provided by this order, the court will issue findings and recommendations that the claims identified in the court's August 20, 2007, order as defective be dismissed, as well as such further orders as are necessary for service of process on defendant Lea.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for a further extension of time to file an amended complaint is granted; and
2. Plaintiff may file an amended complaint within 60 days of the date of this order.