FILED
NOT FOR PUBLICATION MAR 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARVELLOUS A. GREENE, No. 09-15414
Plaintiff - Appellant, D.C. No. 1:08-CV-00677-CRB
v.
MEMORANDUM *
J. JONES, Lieutenant, CCI; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Charles R. Breyer, District Judge, Presiding
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Marvellous A. Greene, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that strip
searches conducted at California Correctional Institution (“CCI”) violated his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
constitutional rights. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and we vacate and
remand.
The district court’s February 12, 2009 order of dismissal evaluates only
Greene’s original complaint, although Greene filed a first amended complaint on
June 23, 2008. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997)
(“[An] amended complaint supercedes the original, the latter being treated
thereafter as non-existent.”). Accordingly, we vacate the judgment and remand for
further proceedings.
On remand, the district court should provide Greene leave to file a second
amended complaint, after apprising him of the deficiencies in the original and
amended complaints and the requirement that an amended complaint be complete
in and of itself. We also draw the district court’s attention to Greene’s claim that
Muslim inmates at CCI were singled-out for strip searches, whereas inmates of
other religions were not.
Greene shall bear his own costs on appeal.
VACATED and REMANDED.
DS/Research 2 09-15414