United States District Court, E.D. California
VESTER L. PATTERSON, Plaintiff,
JOHN CLARK KELSO, Defendant.
L. Patterson, Plaintiff, Pro Se.
Clark Kelso, Defendant, represented by Jaime G. Touchstone,
Futterman Dupree Dodd Croley Maier LLP.
ALLISON CLAIRE, Magistrate Judge.
is a state prisoner proceeding pro se with a tort action.
Currently before the court are defendant's motions to
dismiss or in the alternative grant summary judgment (ECF
Nos. 3, 7, 16) and motion to strike the second amended
complaint (ECF No. 14) and plaintiff's motion to remand
(ECF No. 11), motion for preliminary injunction (ECF No. 17),
and motion to amend (ECF No. 22). The parties have consented
to the jurisdiction of the undersigned magistrate judge for
all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule
305(a). ECF Nos. 3-3, 9.
April 6, 2016, defendant Kelso removed the complaint, which
alleged claims for "general negligence" and
"intentional tort, " from the Sacramento County
Superior Court to this court. ECF No. 1. Defendant Kelso, who
was appointed by the United States District Court for the
Northern District of California as the Receiver for the
California prison medical healthcare system, removed the case
pursuant to 28 U.S.C. § 1442(a)(1) and (3). Id .;
Plata v. Schwarzenegger (Plata), 3:01-cv-01351 THE, ECF No.
1063 (N.D. Cal. Jan. 23, 2008).
removing the complaint, defendant Kelso moved for dismissal.
ECF No. 3. As permitted by Federal Rule of Civil Procedure
15(a)(1)(B), plaintiff timely filed a first amended complaint
(ECF No. 6) which defendant moved to dismiss (ECF No. 7).
Plaintiff then proceeded to file a motion to remand the case
to state court (ECF No. 11) and a second amended complaint
(ECF No. 13). Defendant has opposed the motion to remand (ECF
No. 15) and filed motions to strike (ECF No. 14) and dismiss
(ECF No. 16) the second amended complaint. Plaintiff has also
filed a motion to amend the complaint. ECF No. 22. Finally,
plaintiff filed a motion for preliminary injunctive relief
(ECF No. 17) for which defendant seeks clarification as to
whether he must respond in light of the pending motions to
dismiss and alternatively requests an extension of time to
respond (ECF No. 18).
Motion to Remand
moves to remand this case back to state court on the ground
that it does not contain any constitutional claims. ECF No.
11. Defendant opposes the motion on the ground that the
complaint was properly removed under 28 U.S.C. § 1442(a)(1),
(3). ECF No. 15.
creating the receivership, the Northern District ordered that
"[t]he Receiver and his staff shall have the status of
officers and agents of this Court." Plata, ECF No. 473
at 6 (N.D. Cal. Feb. 14, 2006). Section 1442 provides that
[a] civil action... that is commenced in a State court and
that is against or directed to any of the following may be
removed by them to the district court of the United States
for the district and division embracing the place wherein it
(1)... [A]ny officer (or any person acting under that
officer) of the United States or of any agency thereof, in an
official or individual capacity, for or relating to any act
under color of such office or on account of any right, title
or authority claimed under any Act of Congress for the
apprehension or punishment of criminals or the collection of
(3) Any officer of the courts of the United States, for or
relating to any act under color of office or in the
performance of his duties.
28 U.S.C. § 1442(a)(1), (3).
"[A] receiver is an officer of the courts of the United
States...." Ely Valley Mines, Inc. v. Hartford
Accident & Indem. Co., 644 F.2d 1310, 1312 (9th Cir.
1981). "The requirement of any act under color of such
office' has been construed as requiring a causal
connection between the charged conduct and the official
authority." Id. at 1313. That connection is
established where the challenged conduct involves actions
"entrusted" to the receiver "in his capacity
as receiver." Gay v. Ruff, 292 U.S. 25, 33, 39,
54 S.Ct. 608, 78 L.Ed. 1099 (1934).
Med. Dev. Int'l v. Cal. Dept. of Corr. and
Rehab., 585 F.3d 1211, 1216 (9th Cir. 2009) (alteration
in original). In other words, removal under § 1442 is proper
where the claims are related to defendant's performance
of his court-appointed duties. Id . (Receiver of the
California prison healthcare system properly removed
complaint under § 1442). Plaintiff's allegations that
defendant has been negligent in the performance of his duties
as Receiver clearly establish the required causal connection
and removal in this case was proper. Plaintiff's motion
to remand will therefore be denied.
defendant moved to dismiss the original complaint, plaintiff
filed a first amended complaint within twenty-one days of
service, which the Federal Rules permit as a matter of
course. Fed.R.Civ.P. 15(a)(1)(B). An "amended complaint
supersedes the original, the latter being treated thereafter
as non-existent." Loux v. Rhay, 375 F.2d 55, 57
(9th Cir. 1967) (citations omitted), overruled on other
grounds by Lacey v. Maricopa County, 693 F.3d 896,
929 (9th Cir. 2012). "[A]fter amendment the original
pleading no longer performs any function." Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (citing
Loux, 375 F.2d at 57)). Because plaintiff's
original complaint has been superseded by the first amended
complaint, defendant's motion to dismiss the original
complaint is denied as moot.
defendant moved to dismiss the first amended complaint (ECF
No. 7), plaintiff filed a second amended complaint (ECF No.
13). However, Rule 15 permits amendment as a matter of course
only once. Fed.R.Civ.P. 15(a)(1). After that, amendment may
only be made "with the opposing party's written
consent or the court's leave." Fed.R.Civ.P.
15(a)(2). Defendant has moved to strike the second amended
complaint on the grounds that he has not consented to the
amendment and that the court has not given plaintiff leave to
amend. ECF No. 14. Defendant has also filed a motion to
dismiss the second amended complaint in the event the court
chooses to allow it to go forward. ECF No. 16.
court will grant defendant's motion to strike the second
amended complaint because plaintiff did not obtain
defendant's consent or leave of the court before filing
the amended complaint. Furthermore, the second amended
complaint does not cure the deficiencies in the first amended
complaint, as will be addressed below. Because the motion to
strike the second amended complaint is being granted,
defendant's motion to dismiss the second amended
complaint will be denied as moot.
has also filed a motion to amend. ECF No. 22. It is unclear
whether the motion is intended to belatedly accompany the
second amended complaint or whether plaintiff is seeking
leave to file a third amended complaint. In either case, the
motion will be denied. If plaintiff is seeking authorization
for his second amended complaint, the motion is denied
because the second amended complaint does not cure the
defects in the first amended complaint. If plaintiff is
seeking leave to file a third amended complaint, the motion
is denied because plaintiff has not lodged a copy of the
proposed amended complaint and, as discussed below, the court
finds that leave to amend would be futile.
these reasons, the first amended complaint is the operative
complaint and the court will deny plaintiff's motion to
amend and rule on ...