(PS) Horne v. Harris, No. 2:2015cv02388 - Document 8 (E.D. Cal. 2016)

Court Description: ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/22/16 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 1/6/16 5 are VACATED; Plaintiff is GRANTED an additional thirty days from the date of service of this order to file an amended complaint that complies with the requirements of the FRCP, and the Local Rules of Practice. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL HORNE, 12 13 14 15 No. 2:15-cv-2388 MCD CKD PS Plaintiff, v. ORDER DORATHY HARRIS, Defendant. 16 17 Plaintiff is proceeding in this action pro se and in forma pauperis. On November 23, 18 2015, plaintiff’s complaint was dismissed with leave to amend. Plaintiff did not timely file an 19 amended complaint and the court accordingly recommended that the action be dismissed. 20 Plaintiff has now filed objections in which he states he did not receive the findings and 21 recommendations. Plaintiff does not explain, however, why he did not timely file an amended 22 complaint. Plaintiff has, however, submitted a copy of a prescription for a service animal. The 23 court will therefore vacate the findings and recommendations and allow plaintiff an extension of 24 time to file an amended complaint. Plaintiff is cautioned that he must file an amended complaint 25 in a timely fashion or the court will recommend that the action be dismissed. 26 In filing the amended complaint, plaintiff is again advised of the following. In an 27 amended complaint, plaintiff must set forth the jurisdictional grounds upon which the court’s 28 jurisdiction depends. Federal Rule of Civil Procedure 8(a). 1 1 Further, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation 2 of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). 3 It appears that plaintiff may be trying to state a claim under the Fair Housing Act for 4 failure to accommodate plaintiff’s disability. To state such a claim, plaintiff must allege facts 5 showing the following: “(1) that the plaintiff is handicapped within the meaning of 42 U.S.C. § 6 3602(h); (2) that the defendant knew or should reasonably be expected to know of the handicap; 7 (3) that accommodation of the handicap may be necessary to afford the handicapped person an 8 equal opportunity to use and enjoy the dwelling; (4) that the accommodation is reasonable; and 9 (5) that defendant refused to make the requested accommodation.” DuBois v. Assoc. of 10 Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006); see also 11 Intermountain Fair Hous. Council v. CVE Falls Park, L.L.C., No. 2:10-CV-00346-BLW, 2011 12 WL 2945824, at *6 (D. Idaho July 20, 2011); 24 C.F.R. § 100.65(b)(1) (federal fair housing 13 regulations prohibit using security deposits because of handicap). Plaintiff should attach as an 14 exhibit to the amended complaint a copy of the prescription for a service animal. It is not clear 15 from plaintiff’s complaint whether he presently owns a service animal; in any amended complaint 16 plaintiff should clarify whether he presently uses a service animal or has access to an animal 17 trained in the services plaintiffs needs for his alleged handicap. 18 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 19 make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an amended 20 complaint be complete in itself without reference to any prior pleading. This is because, as a 21 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 22 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 23 longer serves any function in the case. Therefore, in an amended complaint, as in an 24 original complaint, each claim and the involvement of each defendant must be sufficiently 25 alleged. 26 In accordance with the above, IT IS HEREBY ORDERED that: 27 1. The findings and recommendations filed January 6, 2016 (ECF No. 5) are vacated; 28 ///// 2 1 2. Plaintiff is granted an additional thirty days from the date of service of this order to file 2 an amended complaint that complies with the requirements of the Federal Rules of Civil 3 Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number 4 assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and 5 two copies of the amended complaint; failure to file an amended complaint in accordance with 6 this order will result in a recommendation that this action be dismissed. 7 Dated: January 22, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 4 horne2388.vac.eot 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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