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Jones-Bey v. Tilton

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 15, 2008

JOSEPH W. JONES-BEY, PLAINTIFF,
v.
JAMES TILTON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983.*fn1 This action proceeds on the first amended complaint (Doc. 11) filed on March 17, 2008.*fn2 The court has not screened the first amended complaint.

On August 1, 2008, plaintiff filed a second amended complaint, entitled "Medical Complaint." Under the section of the form pleading requesting plaintiff to provide information regarding prior actions, plaintiff states: "This is a amending action to both law suits." Federal Rule of Civil Procedure 15 permits a party to amend the complaint once as a matter of right, without leave of court, at any time before a responsive pleading is filed. In this case, plaintiff exercised his Rule 15 opportunity to amend without leave of court by filing the first amended complaint. Because the second amended complaint was filed without first obtaining leave of court, it will be stricken.

If plaintiff would like to make further amendments to the pleadings, he must first file a motion for leave to amend. The court notes that the second amended complaint appears to name completely different defendants and relate to a completely different set of events. It is thus not truly an amended complaint in that the allegations against the defendants named in the first amended complaint are omitted. For this reason, it is possible that plaintiff was actually attempting to initiate an entirely new action by filing the second amended complaint. To the extent plaintiff will seek leave to amend the pleadings in this action, plaintiff is advised that all claims alleged in the first amended complaint which are not alleged in the second amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if plaintiff seeks leave to file a second amended complaint, the court cannot refer to the prior pleading in order to make plaintiff's second amended complaint complete. See Local Rule 15-220. An amended complaint must be complete in itself without reference to any prior pleading. See id. Plaintiff should keep the foregoing in mind when submitting a proposed second amended complaint incident to any motion for leave to amend.

Finally, because the court must screen the operative pleading in this action, and in order to avoid a waste of court effort in this regard, if plaintiff intends to seek leave to amend he shall be required to file such a motion within a time certain. If no motion for leave to amend, along with a proposed amended pleading, is filed within the time provided by this order, the court will presume that plaintiff intends to proceed on the March 17, 2008, first amended complaint, which will then be screened. Any motion for leave to amend filed after a screening order is issued will be disfavored.

Accordingly, IT IS HEREBY ORDERED that:

1. The second amended complaint (Doc. 14) is stricken; and

2. Any motion for leave to file a second amended complaint must be filed within 30 days of the date of this order.


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