Herrera v. Benavides

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JOSHUA S. HERRERA, 11 Case No. 22-cv-07600 BLF (PR) Plaintiff, 12 ORDER STRIKING FIRST v. AMENDED COMPLAINT; 13 GRANTING PLAINTIFF LEAVE TO FILE NEW FIRST AMENDED 14 S. BENAVIDES, et al., COMPLAINT

15 Defendants. 16 (Docket No. 9)

17 18 Plaintiff, a state inmate proceeding pro se, filed a civil rights complaint pursuant to 19 42 U.S.C. § 1983, against officers at Salinas Valley State Prison (“SVSP”). Dkt. No. 1. 20 The Court dismissed the complaint with leave to amend to attempt to correct several 21 pleading deficiencies. Dkt. No. 8. Plaintiff filed a first amended complaint which appears 22 to be missing page 2, which is essential as it shows the exhaustion of administrative 23 remedies, names the defendants, and is the beginning of the statement of facts. See Dkt. 24 No. 9 at 1-3. Accordingly, the Court will STRIKE the first amended complaint filed under 25 Docket No. 9, and grant Plaintiff leave to file a new first amended complaint. 26 27 CONCLUSION 1 1. The first amended complaint shall be STRICKEN. Dkt. No. 9. 2 2. Within twenty-eight (28) days of the date this order is filed, Plaintiff shall 3 || file a new first amended complaint to correct the deficiencies described in the Court’s 4 Order of Dismissal with Leave to Amend, Dkt. No. 5. The first amended complaint must 5 include the caption and civil case number used in this order, Case No. 22-cv-07600 BLF 6 || (PR), and the words “FIRST AMENDED COMPLAINT” on the first page. If using the 7 || court form complaint, Plaintiff must answer all the questions on the form in order for the 8 || action to proceed. The first amended complaint supersedes the original, the latter being 9 || treated thereafter as non-existent. Ramirez v. Cty. Of San Bernardino, 806 F.3d 1002, 10 || 1008 (9th Cir. 2015). Consequently, claims not included in the first amended complaint 11 || are no longer claims and defendants not named in an amended complaint are no longer 12 defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). 5 13 3. Failure to respond in accordance with this order in the time provided S 14 will result in the dismissal with prejudice of this action for failure to state a claim, 3 15 without further notice to Plaintiff. A 16 4, The Clerk shall include a copy of the first amended complaint that was filed, 3 || Dkt. No. 9, and two copies of the court’s complaint with a copy of this order to Plaintiff. 18 IT ISSO ORDERED. 19 Dated: _ September 22, 2023____ Acunbhacnan _ 50 BETH LAB SON FREEMAN United States District Judge 21 22 23 24 75 || pRO-SEXBLECR 22\07600HEmers-suikeFAC co 26 27