Love v. Yates et al
Filing
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ORDER VACATING Order to Show Cause 16 ; ORDER DENYING Plaintiff's Motion for Leave to Amend 15 , signed by Magistrate Judge Sandra M. Snyder on 6/24/11. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CARL R. LOVE,
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CASE NO. 1:10-cv-02304-SMS PC
Plaintiff,
ORDER VACATING ORDER TO SHOW
CAUSE
v.
(ECF No. 16)
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JAMES A YATES, et al.,
ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO AMEND
Defendants.
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(ECF No. 15)
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Plaintiff Carl R. Love (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint in this action
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on December 10, 2010. (ECF No. 1.) On May 26, 2011, Plaintiff filed a motion for leave to amend
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the complaint because he has now received the director’s level appeal response. (ECF No. 15.) On
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June 1, 2011, an order issued requiring Plaintiff to show cause why this action should not be
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dismissed for his failure to exhaust administrative remedies. (ECF No. 16.) On June 21, 2011,
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Plaintiff filed a response to the order to show cause. (ECF No. 18.)
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In his response to the order to show cause, Plaintiff states that there was a delay in receiving
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the response to his first level appeal. The appeal was completed on May 3, 2010, and Plaintiff
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alleges that, due to being transferred to another institution, he did not receive the response until July
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19, 2010. Since Plaintiff is alleging the delay should excuse his exhaustion requirement, the Court
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declines to decide the issue at this juncture in action. Therefore, the order to show cause is vacated.
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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s
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pleading once as a matter of course at any time before a responsive pleading is served. Otherwise,
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a party may amend only by leave of the court or by written consent of the adverse party, and leave
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shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). In this case, a responsive
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pleading has not been served and Plaintiff has not previously amended his complaint. Therefore,
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Plaintiff may file an amended complaint without leave of the Court.
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In addition, Plaintiff is advised that his amended complaint should be brief, Fed. R. Civ. P.
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8(a), but must state what each named defendant did that led to the deprivation of Plaintiff’s
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constitutional or other federal rights, Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948-49 (2009). “The
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inquiry into causation must be individualized and focus on the duties and responsibilities of each
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individual defendant whose acts or omissions are alleged to have caused a constitutional
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deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as true, the
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“[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . .”
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Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (citations omitted). Finally, an amended
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complaint supercedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.
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1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be “complete in itself without
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reference to the prior or superceded pleading,” Local Rule 220.
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Accordingly, it is HEREBY ORDERED that:
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The order to show cause, issued June 1, 2011, is VACATED; and
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Plaintiff’s motion for leave to file an amended complaint, filed May 26, 2011, is
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DENIED.
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IT IS SO ORDERED.
Dated:
cm411
June 24, 2011
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
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