(PC) Kern v. North Kern State Prison

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES CURTIS KERN, No. 1:24-cv-01195-KES-SAB (PC) 12 Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATION AND GRANTING 13 v. PLAINTIFF ONE FINAL OPPORTUNITY TO FILE A SECOND AMENDED COMPLAINT 14 A.F. ALPHONSO, (ECF Nos. 9, 10) 15 Defendant.

16 17 Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42 18 U.S.C. § 1983. Plaintiff filed the instant action on October 2, 2024. (ECF No. 1.) 19 On October 21, 2024, the Court screened Plaintiff’s complaint, found not cognizable 20 claims, and granted Plaintiff thirty days to file an amended complaint. (ECF No. 5.) 21 Plaintiff filed an amended complaint on November 4, 2024. (ECF No. 8.) On November 22 25, 2024, the Court screened the first amended complaint and issued Findings and 23 Recommendations recommending the instant action be dismissed for failure to state a cognizable 24 claim for relief. (ECF No. 9.) 25 Plaintiff filed objections on December 9, 2024. (ECF No. 10.) In his objections, Plaintiff 26 provides additional factual details that were not presented in the first amended complaint and it is 27 appears that Plaintiff may be able to present additional facts in support of a claim for deliberate 28 1 | indifference against Dr. state a cognizable claim for relief based on the additional allegations. 2 | Thus, given that pro se complaints should be pro se complaints should be liberally construed and 3 | “may only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in 4 | support of his [or her] claim[,]” Mangiaracina v. Penzone, 849 F.3d 1191, 1195 (9th Cir. 2017), 5 | the Court will vacate the pending Findings and Recommendations and grant Plaintiff one final 6 | opportunity to amend the complaint. However, Plaintiff is advised that the Court makes no ruling 7 | as the merits of any claims presented in a second amended complaint. Plaintiff is further advised 8 | that the Court cannot refer to a prior pleading in order to make Plaintiff’s amended complaint 9 | complete. Local Rule 220 requires that an amended complaint be complete in itself without 10 | reference to any prior pleading. This requirement exists because, as a general rule, an amended 11 | complaint supersedes the original complaint. See Ramirez v. County of San Bernardino, 806 F.3d 12 | 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint supersedes the original, the latter being 13 | treated thereafter as non-existent.’ ”’). 14 Based on the foregoing, it is HEREBY ORDERED that: 15 1. The Findings and Recommendations issued on November 25, 2024 are 16 VACATED; 17 2. Plaintiff shall file a second amended complaint within thirty days from the date of 18 service of this order; and 19 3. Failure to comply with this order will result in a recommendation for dismissal of 20 the action. 21 IT IS SO ORDERED. DAM Le 23 | Dated: _ December 10, 2024 STANLEY A. BOONE 24 United States Magistrate Judge 25 26 27 28