Plaintiff is a state prisoner proceeding pro se with a civil rights
action pursuant to
42 U.S.C. § 1983. On August 6, 2010, the court directed the United
States Marshal to serve process on twenty-eight defendants named in
claims raised in plaintiff's first amended complaint. On December 17,
2010, twenty-seven defendants filed a motion to dismiss.*fn1
In an order filed August 15, 2011, this court found that
plaintiff had set forth additional factual allegations in his
opposition that might, if included in a second amended complaint, cure
some or all of the alleged deficiencies in the first amended
complaint. For that reason, plaintiff's first amended complaint was
dismissed with leave to amend, and defendants' motion to dismiss was
prejudice. After receiving an extension of time to do so, on October
11, 2011, plaintiff filed a proposed second amended
Plaintiff has added twenty-two new defendants in the proposed second amended complaint. In addition, although it is not entirely clear, it appears that plaintiff may be attempting to add new claims to this action. Plaintiff was granted permission to amend his complaint only so that he could add factual allegations against already served defendants to the claims raised in the first amended complaint. Plaintiff has not sought leave to add new claims or to join new defendants, nor will the court grant him leave to do so in this action, which has already been pending for three years.
Good cause appearing, plaintiff's second amended complaint will be dismissed. Plaintiff will be granted a period of thirty days in which to file a third amended complaint. Should plaintiff choose to file a third amended complaint, he shall name as defendants only individuals who have been served with process in this action, and he shall raise against those individuals only the claims raised in the first amended complaint. The sole purpose of the amendment is to add, as appropriate, additional factual allegations included in his opposition to defendants' motion to dismiss to support the claims already raised in the first amended complaint. For that reason, the Clerk of the Court will be directed to send plaintiff a copy of his first amended complaint and a copy of his opposition to defendants' motion to dismiss. If plaintiff fails to comply with this order in any way, including but not limited to naming additional defendants or raising claims not already raised in the first amended complaint, this court will recommend dismissal of this action as a sanction for non-compliance with orders of this court. See Local Rule 11-110; Fed. R. Civ. P. 41(b).
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's second amended complaint is dismissed; and
2. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Amendment and submit the following documents to the court:
a. The completed Notice of Amendment; and
b. An original and one copy of the Third Amended Complaint. Plaintiff's third amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, the Local Rules of Practice, and this order; the third amended complaint must bear the docket number assigned this case and must be labeled "Third Amended Complaint"; failure to file a third amended complaint in accordance with this order will result in a recommendation that this action be dismissed.
3. The Clerk of the Court is directed to send plaintiff a copy of his first amended complaint, filed December 14, 2009 (Docket No. 19), a copy of his opposition to defendants' motion to dismiss, filed February 24, 2011 (Docket No. 63), and a copy of the court's form civil rights complaint for use in preparation of any proposed third amended complaint.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
VINCENT J. SOLOMON, Plaintiff, v. WARDEN T. FELKER, et al., Defendants.
No. 2:08-cv-2544 WBS JFM (PC)
Plaintiff hereby submits the following document in compliance with the ...