1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY SERMENO, No. 2:25-CV-1902-DAD-DMC 12 Plaintiff, 13 v. ORDER 14 DEBBY GROVER, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, brings this civil action. Pending before the 18 Court are Plaintiff’s motion for reconsideration, ECF No. 14 and first amended complaint, ECF 19 No. 15. 20 The Court is required to screen complaints brought by litigants who, as here, have 21 been granted leave to proceed in forma pauperis. See

(e)(2). Under this 22 screening provision, the Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See

(e)(2)(A), (B). 25 Moreover, pursuant to Federal Rule of Civil Procedure 12(h)(3), this Court must dismiss an 26 action if the Court determines that it lacks subject matter jurisdiction. Pursuant to Rule 12(h)(3), 27 the Court will also consider as a threshold matter whether it has subject-matter jurisdiction. 28 / / / 1 I. BACKGROUND 2 Plaintiff filed the original complaint on July 7, 2025. See ECF No. 1. This Court 3 dismissed the complaint with leave to amend. See ECF No. 8. On August 25, 2025, Plaintiff filed 4 a motion to appoint counsel, ECF No. 10, motion for limited discovery, ECF No. 11, motion for 5 preliminary injunction, ECF No. 12, motion for expedited relief, ECF No. 13, motion for 6 reconsideration, ECF No 14, and motion for deferment, ECF No. 16. 7 A. First Amended Complaint, ECF No. 15 8 On August 25, 2025, Plaintiff filed a first amended complaint, ECF No. 15. 9 Plaintiff’s first amended complaint is identical to the original complaint, except that Plaintiff 10 removed the section “Plaintiff’s personal history and systemic racial discrimination” and changed 11 the font size. See ECF Nos. 1 and 15. Given it is the same, the Court reiterates the summary of 12 Plaintiff’s allegations, citing to the original complaint:

13 Plaintiff brings claims against Defendants Debbie Grover, Melissa Romero, A. Smith, and Butte County. See ECF No. 1. According to Plaintiff, 14 Defendant Grover “prepared a pre-sentence report that falsely classified [Plaintiff’s] prior conviction as a felony in order to justify a sentencing 15 enhancement” despite such conviction having “been formally reduced to a misdemeanor [ ] years earlier.”

. Plaintiff also contends that Defendant 16 Grover “failed to include applicable pre-sentence custody credits” in that same report.

Plaintiff asserts that Defendants Romero and Smith did not take “any 17 steps to verify or correct the record.” Plaintiff states “it was only through [Plaintiff’s] efforts – and with the help of his attorney – that certified documents 18 were obtained from Glenn County, forcing the court to correct the record and impost a lesser sentence on September 5, 2024.”

. 19 Further, Plaintiff asserts these actions were the result of “racial discrimination and institutional culture of indifference.”

Plaintiff provides 20 background on the “historical and systematic discrimination” Black individuals face in the legal system, “consistent with findings in the California Reparations 21 Report, Chapter 11.”

[sentence summarizing the section Plaintiff’s personal history and systemic racial discrimination omitted because it was not included in 22 the amended complaint]. Plaintiff asserts fourteen claims against the Defendants, including allegations of violations of Plaintiff’s rights to Due Process and Equal 23 Protection, violations of Brady obligations, First Amendment retaliation, involuntary servitude under the Thirteenth Amendment, municipal liability claims 24 arising from these allegations against Defendant Butte County, and a violation of international law. See

. 25 ECF No. 8. 26 / / / 27 / / / 28 / / / 1 B. Motion for Reconsideration, ECF No. 14 2 In his motion for reconsideration, Plaintiff states that relief is warranted under 3 Federal Rule of Civil Procedure 59(e). See ECF No. 14, pg. 2. Plaintiff asserts that while the 4 error in his sentencing report was corrected and ultimately did not impact his sentencing, “the 5 dissemination of this report to a third party with judicial power constituted reputational harm and 6 exposed Plaintiff to significant risk of a more severe sentence.”

. Plaintiff cited 7 TransUnion LLC v. Ramirez,

(2021), in support of this argument. See

8 Plaintiff additionally cited Devereaux v. Abbey,

(9th Cir. 2001), arguing that the 9 “material misstatement of fact made under color of state law, and relied on during criminal 10 proceedings . . . is sufficient under Devereaux.” Id. at 3-4. Plaintiff contends that Devereaux 11 establishes that “§1983 liability attaches where an official either engages in the deliberate 12 falsification of evidence or fails to intervene in the fact of such conduct.” Id. at 5 (emphasis in 13 original) (citing Devereaux v. Abbey,

(9th Cir. 2001)). 14 Plaintiff compares his allegations to Delew v. Wagner,

(9th Cir. 15 1998), contending that “the ‘cover-up’ or use of false information in reports ‘deprives a person of 16 fair criminal proceedings’ and is independently actionable.” Id. at 4 (quoting Delew v. Wagner, 17

(9th Cir. 1998)). Additionally, Plaintiff asserts that “because the report was used at 18 sentencing, the injury is not hypothetical – Plaintiff had to actively fight to correct the record in 19 real-time, under threat of unlawful enhancement. That cost – time, stress, reputation, and due 20 process burden – is legally sufficient.” Id. Plaintiff further argues that his due process rights were 21 violated because “Defendant Grocer subjected Plaintiff—or at a minimum caused Plaintiff to be 22 subjected –to a potential sentence based on false premises.” Id. at 5. 23 Plaintiff further asserts that the actions alleged constitute a “conspiracy to deprive 24 Plaintiff of constitutional rights under §1985. See id. at 6. Plaintiff contends that “Defendants’ 25 actions cannot be immunized by the fact that Plaintiff’s sentence was ultimately corrected. The 26 core of conspiracy liability is not the completed harm, but the agreement to cause it and the 27 substantial risk of deprivation created by that agreement.” Id. at 7 (citing Haddle v. Garrison, 525

(1998) and Crow v. County of San Diego,

(9th Cir. 2010)). Plaintiff 1 requested an order vacating the screening order, that the Court allow the claims to proceed, and to 2 permit Plaintiff to begin discovery, in the alternative, Plaintiff requested leave to amend. See

3 at 8. 4 5 II. DISCUSSION 6 Plaintiff was provided leave to amend to cure the deficiency the Court identified in 7 his original complaint. See ECF No. 8. Plaintiff’s first amended complaint is almost identical to 8 the original complaint and provides no new facts to address the previously identified deficiency. 9 See ECF No. 15. However, because Plaintiff’s additional motions and filings indicate he may be 10 able to cure such deficiency, and out of an abundance of caution, the Court will provide Plaintiff 11 with leave to amend. 12 A. First Amended Complaint, ECF No. 15 13 Plaintiff’s first amended complaint is almost identical to the original complaint, 14 except that Plaintiff removed one section that was in the original complaint. See ECF Nos. 1 and 15 15. This Court screened Plaintiff’s original complaint and dismissed it with leave to amend, 16 finding Plaintiff lacked standing to bring the action because he alleged no concrete harm or injury 17 in fact. See ECF No. 8, pg. 3. The Court said:

18 Here, Plaintiff contends that Defendants violated his constitutional rights by including “false” information in a sentencing report “affecting [Plaintiff’s] 19 sentencing exposure.” ECF No. 1, pg. 2. However, Plaintiff contends that this error was fixed before Plaintiff’s sentencing and therefore, Plaintiff suffered no concrete 20 harm, or injury in fact, as a result of this “falsely classified” prior conviction. Plaintiff asserted that there was the potential of an injury, and such injury was 21 avoided, not that he suffered a concrete, particularized injury. Accordingly, Plaintiff has not established standing to pursue this action. 22

23 24 Though Plaintiff was provided leave to amend and advised of this deficiency, 25 Plaintiff filed an amended complaint nearly identical to the original complaint. See ECF Nos. 1 26 and 15. Plaintiff did not address the deficiency identified nor provide any new allegations for the 27 Court to consider. See

The Court cannot refer to the prior pleading in order to make Plaintiff's 28 amended complaint complete. See Local Rule 220. An amended complaint must be complete in 1 itself without reference to any prior pleading. See

However, the Court notes that Plaintiff’s 2 additional filings indicate that he may be able to cure such deficiency. Given Plaintiff’s pro se 3 status and out of an abundance of caution, the Court will provide Plaintiff with an additional 4 opportunity to amend his complaint to show Plaintiff suffers a concrete harm or injury in fact. 5 C. Motion for Reconsideration, ECF No. 14 6 In Plaintiff’s motion for reconsideration, he requested reconsideration of his 7 original complaint or in the alternative, leave to amend his complaint. See ECF No. 14. This 8 Court already provided Plaintiff leave to amend, ECF No. 8, and Plaintiff filed an amended 9 complaint. Thus, Plaintiff was already provided the relief he requested. See ECF No. 8. Further, 10 the Court again is providing Plaintiff with leave to amend. Thus, Plaintiff’s motion for 11 reconsideration, ECF No. 14, will be denied as moot and Plaintiff may file an amended complaint 12 within 30 days of this order. 13 14 III. CONCLUSION 15 Because it is possible that some of the deficiencies identified in this order may be 16 cured by amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the 17 entire action. See Lopez v. Smith,

, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff 18 is informed that, as a general rule, an amended complaint supersedes the original complaint. See 19 Ferdik v. Bonzelet,

(9th Cir. 1992). Thus, following dismissal with leave to 20 amend, all claims alleged in the original complaint which are not alleged in the amended 21 complaint are waived. See King v. Atiyeh,

(9th Cir. 1987). Therefore, if 22 Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make 23 Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 24 complete in itself without reference to any prior pleading. See

25 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 26 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 27 Ellis v. Cassidy,

(9th Cir. 1980). The complaint must allege in specific terms how 28 each named defendant is involved and must set forth some affirmative link or connection between 1 || each defendant’s actions and the claimed deprivation. See May v. Enomoto,

, 167 2 | (9th Cir. 1980); Johnson v. Duffy,

, 743 (9th Cir. 1978). 3 Finally, Plaintiff is warned that failure to file an amended complaint within the 4 || time provided in this order may be grounds for dismissal of this action. See Ferdik,

|| 1260-61; see also Local Rule 110. Plaintiff also warned that a complaint which fails to comply 6 || with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 7 || See Nevijel v. North Coast Life Ins. Co.,

(9th Cir. 1981). 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff's first amended complaint, ECF No. 15, be DISMISSED with leave to 10 amend; 1] 2. Plaintiff’s motion for reconsideration, ECF No. 14, be DISMISSED as MOOT; 12 and 13 3. Plaintiff shall file a second amended complaint within 30 days of the date of 14 service of this order. 15 | Dated: October 28, 2025 Ss..c0_, 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28