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Kelly Morgan v. Tilton

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 14, 2011

KELLY MORGAN,
PLAINTIFF,
v.
TILTON, ET AL., 2 DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISMISSING SECOND AMENDED COMPLAINT(Doc. 43.)

ORDER GRANTING MOTION FOR LEAVE THIRTY-DAY DEADLINE TO FILE THIRD AMENDED COMPLAINT O AMEND (Doc. 42.)

I. RELEVANT PROCEDURAL HISTORY

Kelly Morgan ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on February 15, 2008. (Doc. 1.) The Court screened the Complaint pursuant to 28 U.S.C. 1915A and entered an order on June 3, 2009, dismissing the Complaint with leave to amend. (Doc. 7.) On October 15, 2009, Plaintiff filed the First Amended Complaint. (Doc. 23.) The Court screened the First Amended Complaint and entered an order on March 16, 2011, requiring Plaintiff to either file a Second Amended Complaint or notify the Court of his willingness to proceed with the claims found cognizable by the Court in the First Amended Complaint. (Doc. 37.) On July 13, 2011, Plaintiff filed a Second Amended Complaint and a motion for leave to amend. (Docs. 42, 43.)

II. DISCUSSION

Plaintiff has not clarified why he filed a Second Amended Complaint and a motion for leave to amend in response to the Court's screening order. Nonetheless, the Court has reviewed the Second Amended Complaint and finds it deficient. The Second Amended Complaint consists of a largely uncompleted § 1983 form complaint, signed but not dated, with attached "Exhibit 1" consisting of copies of the Motion for Leave to Amend he previously filed on October 15, 2009, the First Amended Complaint he previously filed on October 15, 2009, and the original Complaint he previously filed on February 15, 2008. (Doc. 43.) Plaintiff fails to comply with the Court's screening order which directed him to file a Second Amended Complaint "complete in itself, without reference to any prior pleading." (Screening O, Doc. 37 at 8:8-9.) Therefore, the Second Amended Complaint shall be dismissed.

Plaintiff's motion to amend includes thirteen pages of handwritten allegations and claims, which the Court presumes is language that Plaintiff proposes to include in an amended complaint. (Doc. 42.) "Rule 15(a) is very liberal and leave to amend 'shall be freely given when justice so requires.'" AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). Therefore, Plaintiff's motion to amend shall be granted. Within thirty days, Plaintiff is required to file a Third Amended Complaint, complete in itself and without reference to any other prior complaint. L. R. 220. The Clerk shall send Plaintiff a § 1983 form complaint to complete and return to the Court. Plaintiff shall entitle the new complaint "Third Amended Complaint" and refer to case number 1:08-cv-00233-OWW-GSA-PC. The Third Amended Complaint must be signed and dated under penalty of perjury. Plaintiff should refer back to the Court's second screening order of March 16, 2011, for further instruction about filing an amended complaint that states a cognizable claim. Plaintiff may not add new, unrelated claims or defendants in the Third Amended Complaint. Fed. R. Civ. P. 18(a).

III. CONCLUSION

Based on the foregoing, IT IS HEREBY ORDERED that:

1. Plaintiff's Second Amended Complaint, filed on July 13, 2011, is DISMISSED with leave to amend;

2. Plaintiff's Motion to Amend, filed July 13, 2011, is GRANTED;

3. The Clerk's Office shall send Plaintiff a § 1983 civil rights complaint form;

4. Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint as instructed by this order;

5. Plaintiff shall caption the amended complaint "Third Amended Complaint" and refer to the case number 1:08-cv-00233-OWW-GSA-PC; and

6. If Plaintiff fails to comply with this order, this action will be dismissed for failure to comply with a court order.

IT IS SO ORDERED.

6i0kij

20110714

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