IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 29, 2010
LAFAYETTE ANTWONE SMITH, PLAINTIFF,
G. SALAS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. By order, filed on November 17, 2009, the court ordered service of plaintiff's original complaint on defendants G. Salas, D. Caceres and R. Morrow. On April 9, 2010, these defendants filed their answer. Thereafter, on July 21, 2010, plaintiff filed an amended complaint.
The proposed amended complaint will be stricken for several reasons. First, while plaintiff may file an amended pleading "once as a matter of course," he must do so, once a responsive pleading has been served, within 21 days thereafter. Fed. R. Civ. P. 15(a)(1)(B). Plaintiff's proposed amended complaint was not filed timely following service of the answer (or "responsive pleading"). Second, plaintiff failed to file either a motion to amend or a stipulation to amend the complaint signed by all parties. Fed. R. Civ. P. 15(a)(2). Third, under Fed. R. Civ. 15(a)(2), while "[t]he court should freely give leave" to amend "when justice so requires," the court finds the amended filing to be defective, failing to even set forth any allegations against two of the named defendants, Salas and Morrow. See proposed amended complaint (docket # 22). Plaintiff has not made at all clear that it is his intent solely to proceed against defendant Caceres, particularly since he continues to name all three defendants in his case caption. Moreover, as framed, the allegation of "disrespectful" behavior he makes against defendant Caceres in the proposed first amended complaint does not even appear to rise to the level of a violation of a constitutional right. It is possible that in attempting to amend his complaint, plaintiff sought to attach some of the exhibits that are additional to the ones that he attached to his original complaint. Plaintiff is not otherwise foreclosed, however, from making use of any relevant exhibits in opposition to any future dispositive motion that defendants might file. Plaintiff's defective proposed amended complaint will therefore be stricken.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is to strike plaintiff's defective proposed first amended complaint, filed on July 21, 2010 (docket # 22), from the docket of this case and this matter will proceed on the original complaint.
© 1992-2010 VersusLaw Inc.