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Uriarte v. Schwarzenegger

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 25, 2010

FRANCISCO URIARTE, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT [Doc. No. 142]

On August 12, 2010, Plaintiff Francisco Uriarte, a state prisoner proceeding pro se, filed a motion for leave to file a second amended complaint. [Doc. No. 142.] Plaintiff asserts the proposed second amended complaint adds "nothing new" with respect to the CDCR Defendants. [Id. at ¶¶13-14.] Rather, Plaintiff requests leave to add a new corporate defendant, asserting that the "negligent and intentional tort acts" of existing "defendant Mark Greene are attributable to his employer, the Norment Security Group, Inc." [Id. at ¶¶3-5.] In addition, Plaintiff asserts Defendant Mark Greene is also known as Larry W. Green, and seeks to substitute this name in place of Mark Greene. [Id. at ¶¶10-11.] Plaintiff's proposed second amended complaint will allege two new causes of action against the Norment Security Group, for violation of 42 U.S.C. § 1983 and violation of the Product Liability Act. [Doc. No. 142-1, p.51-53.] The proposed second amended complaint also no longer asserts causes of action against Defendants J. Tilton, R. Hickman, J. Woodford, P. Farber-Szekreny and N. Grannis, each of whom were sued in their official capacities. [Doc. No. 142, ¶6.] Finally, Plaintiff notes that he would have removed Defendant Arnold Schwarzenegger from the second amended complaint, but did not do so because his name appears in the caption. [Id. at p.1.]

On August 25, 2010, Defendants filed a notice of non-opposition to Plaintiff's motion. [Doc. No. 144.] Accordingly, the Court GRANTS Plaintiff's motion for leave to file a second amended complaint. In light of the procedural posture of this case, however, absent extraordinary circumstances, no further amendments shall be permitted.

IT IS THEREFORE ORDERED that:

(i) The Clerk of Court shall docket Plaintiff's second amended complaint, which he filed as an exhibit to his pending motion for leave to amend (Doc. No. 142-1), upon entering this order.

(ii) The Clerk shall add Norment Security Group, Inc. as a defendant, and thereafter issue a summons upon the company and forward it to Plaintiff along with a blank U.S. Marshal Form 285. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order, the February 6, 2007 Order granting Plaintiff leave to proceed in forma pauperis ("IFP") [Doc. No. 8], and a copy of his Second Amended Complaint for purposes of serving this new defendant. Upon receipt of this "IFP Package," Plaintiff is directed to complete the Form 285 as completely and accurately as possible, and to return it to the United States Marshal according to the instructions provided by the Clerk in the letter accompanying his IFP Package. Thereafter, the U.S. Marshal shall serve a copy of the Second Amended Complaint and summons upon Norment Security Group, Inc., as directed by Plaintiff on the Form 285. The costs of service on this defendant shall be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. Proc. 4(c)(3).

(iii) The Clerk shall dismiss Defendants J. Tilton, R. Hickman, J. Woodford, P. Farber-Szekreny, N. Grannis, and A. Schwarzenegger from this action. The caption for this action shall remain unchanged, despite Defendant Schwarzenegger's dismissal;

(iv) Defendant Larry William Green shall be substituted in place of existing Defendant Mark Greene.

(v) All Defendants shall respond to the Second Amended Complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a).

IT IS SO ORDERED.

20100825

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