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Sylester Williams v. Bobby Phillips

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


April 8, 2011

SYLESTER WILLIAMS,
PLAINTIFF,
v.
BOBBY PHILLIPS,
DEFENDANT.

The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER DENYING MOTION TO COMPEL (Doc. 17)

ORDER DENYING MOTION TO AMEND WITHOUT PREJUDICE (Doc. 18)

ORDER GRANTING EXTENSION OF TIME TO SUBMIT SERVICE DOCUMENT WITH CORRECT INFORMATION (Doc. 19)

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. By order filed March 30, 2011, the Court directed Plaintiff to provide additional information to effectuate service on Defendant. (Doc. 16.) In response, Plaintiff filed three motions on April 5, 2011 requesting various forms of relief.

First, Plaintiff filed a motion to compel the Associate Warden at Corcoran State Prison to provide the business address of Defendant. (Doc. 17) The Associate Warden, however, is not a party to this action and therefore is not within the jurisdiction of this Court. Plaintiff's motion to compel will be denied.

Second, Plaintiff requests an extension of time to respond to the Court's March 30, 2011 order. (Doc. 19) Plaintiff contends that he has family members assisting him in obtaining the physical address of Defendant. Good cause appearing, the Court will grant Plaintiff an extension of time for this purpose.

Third, Plaintiff requests leave to file a second amended complaint. Plaintiff may amend his pleadings as a matter of right before service of a responsive pleading. see Fed. R. Civ. P. 15(a). However, here the Court has already, once before, granted leave to file an amended complaint. Therefore, for the Court to evaluate Plaintiff's motion to file a second amended complaint, he must attach a copy of the proposed second amended complaint to his motion to amend. Thus, the Court cannot grant his motion at this time and the motion will be denied without prejudice.

Plaintiff is permitted to file a new motion for leave to file a second amended complaint but he must provide a copy of his proposed second amended complaint with it. Due to the pendency of service of the First Amended Complaint, however, Plaintiff is ORDERED to file his new motion for leave to file a second amended complaint along with a copy of his proposed second amended complaint by May 2, 2011.

Plaintiff is reminded that his second amended complaint will supercede his original pleadings. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, the proposed second amended complaint must be "complete in itself without reference to the prior or superceded pleading." Local Rule 220. "All causes of action alleged in an original complaint which are not [re-]alleged in an amended complaint are waived." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citations omitted).

In accordance with the above, it is HEREBY ORDERED that:

1. Plaintiff's April 5, 2011 motion to compel (Doc. 17) is DENIED;

2. Plaintiff's April 5, 2011 motion for an extension of time to file a response to the Court's March 30, 2011 order (Doc. 19) is GRANTED; and

3. Plaintiff's April 5, 2011 motion to amend (Doc. 18) is DENIED WITHOUT PREJUDICE.

4. Plaintiff SHALL file his renewed motion for leave to file a second amended complaint along with a copy of his proposed second amended complaint, no later than May 2, 2011.

IT IS SO ORDERED.

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20110408

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