(PC) Calderon v. Mayhew

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JACK LEE CALDERON, No. 2:23-cv-0689 AC P 12 Plaintiff, 13 v. ORDER J. MAYHEW, et al., 15 Defendants.

17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. ECF Nos. 2, 19.

19 Also before the court is plaintiff’s requests to amend his complaint. ECF Nos. 6, 8.

20 I. Application to Proceed In Forma Pauperis 21 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). ECF Nos. 2, 19. Accordingly, the request to proceed in forma pauperis is granted.

23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month’s income credited to plaintiff's prison trust account. 28 1 U.S.C. § 1915(b)(2). These payments will be 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. Id. 4 II. Requests to Amend the Complaint 5 Plaintiff has filed two requests to amend his complaint. ECF Nos. 6, 8. In the first, it appears that plaintiff seeks to add state law and retaliation claims. ECF No. 6. In the second, it appears that plaintiff seeks to add retaliation claims. ECF No. 8. Since plaintiff is still within the time for filing an amended complaint as of right, see Fed. R. Civ. P. 15(a)(1), the request to amend is denied as moot.

10 If plaintiff chooses to amend the complaint, he is advised that he may only join multiple claims if they are all against a single defendant, Fed. R. Civ. P. 18(a), and he may only join defendants where the right to relief arises out of the same “transaction, occurrence, or series of transactions,” and “any question of law or fact common to all defendants will arise in the action,” Fed. R. Civ. P. 20(a)(2). In other words, joining more than one claim is only proper when it is against one defendant, and joining multiple defendants in one complaint is only proper when the claims against them are based on the same facts. Plaintiff must decide which related claims and defendants he wants to pursue in this action, and any unrelated claims involving different defendants must be brought in separate suits.

19 Plaintiff is further informed that the court cannot refer to a prior pleading to make his first amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, generally, an amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended complaint, the original complaint 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. In the event plaintiff does not file an amended complaint, | the court will proceed to screen the original complaint.

2 In his first request to amend plaintiff also requests that the court return his attachment—a || letter from the California Department of General Services—because he was unable to make | copies and sent the original. ECF No. 6 at 2. As a one-time courtesy, plaintiff will be provided a || copy of the exhibit. However, plaintiff is advised that he should not send original documents to || the court as the court does not return documents and will not provide copies in the future unless || plaintiff pays the applicable costs.

8 In accordance with the above, IT IS HEREBY ORDERED that: 9 1. Plaintiff's requests for leave to proceed in forma pauperis (ECF No. 2, 19) are | GRANTED.

11 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the || appropriate agency filed concurrently herewith.

15 3. Plaintiffs requests to amend the complaint (ECF Nos. 6, 8) are DENIED as || unnecessary.

17 4. If plaintiff does not file an amended complaint within thirty days of the service of this || order, the court will assume that he is choosing to proceed on the original complaint, which will || then be screened in due course.

20 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint || form used in this district and a copy of the letter attached to his request for leave to amend (ECF || No. 6at 3).

23 || DATED: August 27, 2024 ~ 24 Chttt0n— Chane ALLISON CLAIRE 25 UNITED STATES MAGISTRATE JUDGE