Ramirez v. Swingle et al
Filing
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ORDER denying 26 Motion for leave to amend signed by Magistrate Judge Kendall J. Newman on 11/16/11. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANDREW RAMIREZ,
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Plaintiff,
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No. 2: 11-cv-0045 KJN P
vs.
D. SWINGLE, et al.,
Defendants.
ORDER
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action
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pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s October 5, 2011 motion to
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amend, along with his proposed amended complaint. Defendants have not opposed this motion.
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This action is proceeding on the original complaint filed January 5, 2011 as to
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defendants Medina and Swingle. Plaintiff alleges that in October 2009, he filed an
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administrative grievance alleging that defendant Swingle provided inadequate medical care. In
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particular, plaintiff claimed that defendant Swingle mismanaged plaintiff’s insulin, which
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plaintiff takes for diabetes, and refused to provide plaintiff with physical therapy. Plaintiff
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alleges that defendant Swingle interviewed plaintiff regarding his administrative grievance in
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November 2009, and found that defendant Medina had not provided inadequate medical care.
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Plaintiff alleges that in December 2009, defendant Medina lowered plaintiff’s pain medication
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dosage and made changes to plaintiff’s insulin dosage for no medical reason.
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In the proposed amended complaint, plaintiff again names defendants Medina and
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Swingle as defendants. Plaintiff also names the following new defendants: Pomazal, Lee,
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Napomuceno, Walker, Wrigley, Pomsend, Burgett, Zamora, Hammond, Fosten and Allen.
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Plaintiff alleges that following his transfer to High Desert State Prison (“HDSP”) in March 2009,
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he received inadequate pain medication and was denied breathing treatments. Plaintiff also
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alleges that he was not referred to a high risk provider. Plaintiff also alleges that he was not
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given an egg crate mattress. The proposed amended complaint does not contain the allegations
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contained in the original complaint regarding the changes in plaintiff’s insulin dosage and denial
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of physical therapy.
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The Federal Rules of Civil Procedure provide that a party may amend his or her
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pleading “once as a matter of course at any time before a responsive pleading is served.” Fed. R.
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Civ. P. 15(a). “It is the law of this circuit that a plaintiff waives all claims alleged in a dismissed
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complaint which are not realleged in an amended complaint.” Forsyth v. Humana, Inc., 114 F.3d
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1467 (9th Cir. 1997). Thus, an amended or supplemental complaint supersedes the original
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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended pleading is
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filed, the original pleading no longer serves any function in the case. Id.; see also E.D. Local
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Rule 220. Although the allegations of this pro se complaint are held to “less stringent standards
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than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
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curiam), plaintiff will be required to comply with the Federal Rules of Civil Procedure and the
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Local Rules of the Eastern District of California.
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Although the proposed amended complaint contains no allegations regarding
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defendants changing plaintiff’s insulin dosage, it is clear that plaintiff did not intend to abandon
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this claim. On October 5, 2011, plaintiff filed a motion for injunctive relief concerning alleged
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inadequate pain medication, breathing treatments and insulin dosage.
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Plaintiff’s proposed amended complaint does not comply with Local Rule 220
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because it does not contain plaintiff’s claims regarding the alleged changes to his insulin dosage.
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For this reason, plaintiffs motion to amend is denied. If plaintiff files an amended complaint, it
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must include all claims against all defendants. Piecemeal amendment of complaints is not
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permitted.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for leave to
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amend (Dkt. No. 26) is denied.
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DATED: November 16, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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