Opinion
No. CIV S 07-0022 LKK GGH P.
May 11, 2007
ORDER
Plaintiff, an inmate proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).
By order, filed on January 19, 2007, plaintiff was directed to correct the defects of his in forma pauperis application. Plaintiff has now submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). Plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments shall be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
Plaintiff filed his original complaint on January 4, 2007; however, he subsequently filed an amended complaint on March 29, 2007, prior to having filed an adequate in forma pauperis application and before the court screened the original complaint. The Federal Rules of Civil Procedure provide that a party may amend his or her pleading "once as a matter of course at any time before a responsive pleading is served." Fed.R.Civ.P. 15(a). However, an amended or supplemental complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Therefore, this action proceeds on plaintiff's amended complaint.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperis is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The fee shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. Plaintiff's original complaint, filed on January 4, 2007, has been superseded by the amended complaint, filed on March 29, 2007.
4. Service is appropriate for the following defendants: Woodland Police Officer Luke A. Spence; and the following Yolo County Sheriff's Department employees: Commander Ed Prieto; Lieutenant (Lt.) T. Day; Sergeant (Sgt.) D. Hunter; Deputy Chaud; Deputy Gibson; Deputy Jamolodin; Deputy Duvall; Deputy Madden; in addition, Registered Nurse (R.N.) Tony.
Plaintiff has alternatively spelled this individual's name as "Matsen" and "Maten."
5. The Clerk of the Court shall send plaintiff ten (10) USM-285 forms, one summons, an instruction sheet and a copy of the amended complaint filed March 29, 2007.
6. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for each defendant listed in number 4 above; and
d. Eleven (11) copies of the endorsed amended complaint filed March 29, 2007.
7. Plaintiff need not attempt service on defendants and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed: _________________:1 10 11 March 29, 2007
completed summons form completed USM-285 forms copies of the Amended Complaint DATED: __________________________________ Plaintiff