(PS) Oliver v. Shelton

Opinion

DARON MICHAEL OLIVER, No. 2:18-CV-1809-KJM-DMC Plaintiff, v. ORDER MELL,1 Defendant. Plaintiff, who is proceeding pro se, brings this civil action. This action proceeds on Plaintiff’s third amended complaint filed on February 1, 2020. See ECF No. 59. Plaintiff no longer names as defendants T. Hatley or D. Shelton. See id. / / / / / / 1 Defendant has been variously named throughout this action. In the original complaint, Plaintiff listed “Sgt. Mel.” ECF No. 1, pg. 1. In his answer to the original complaint, Defendant states his name is “David Mell.” ECF No. 18, pg. 1. In his first and second amended complaint, Plaintiff again lists Defendant’s name as “Sgt. Mel.” ECF Nos. 34, pg. 1, and 36, pg. 1. In his third amended complaint, Plaintiff names the defendant as “Sgt. David Melboure.” ECF No. 40, pg. 1. In the operative amended complaint, filed on February 1, 2021, pursuant to the District Judge’s January 21, 2021, order, Plaintiff states the only named defendant is “David Melborue.” ECF No. 59, pg. 1. Defendant’s answer to the operative amended complaint states his name is “David Mell.” ECF No. 60, pg. 1. The Court will presume, until informed by Plaintiff otherwise, that his various spellings refer to the same individual – David Mell. The Clerk of the Court will be directed to update the docket to reflect the spelling of Defendant’s name as indicated in his most recent answer at ECF No. 60. As a general rule, an amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be complete in itself without reference to any prior pleading. See id. Here, the third amended complaint no longer names as defendants T. Hatley or D. Shelton. Any claims Plaintiff had previously asserted against these individuals are, therefore, abandoned. This action shall proceed on the third amended complaint against Defendant Mell only. Accordingly, IT IS HEREBY ORDERED that: 1. The Clerk of the Court is directed to terminate “T. Hatley,” “Trevor Hatley,” “D. Shelton,” and “Duane Shelton” as defendants to this action because they are no longer named in the operative amended complaint; 2. The Clerk of the Court is directed to update the docket to reflect that this action proceeds against Defendant “David Mell” only; and 3, The motion to dismiss, ECF No. 61, filed by T. Hatley and D. Shelton is denied as unnecessary because Plaintiff no longer names those individuals as defendants to this action. Dated: February 25, 2021 UNITED STATES MAGISTRATE JUDGE