Patterson v. Kelso

          Vester L. Patterson, Plaintiff, Pro Se.

          John Clark Kelso, Defendant, represented by Jaime G. Touchstone, Futterman Dupree Dodd Croley Maier LLP.

          ORDER

          ALLISON CLAIRE, Magistrate Judge.

         Plaintiff 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.

         I. Procedural History

         On 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).

         After 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).

         II. Motion to Remand

         Plaintiff 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.

         In 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 is pending:

(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 the revenue....

(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.

         III. Operative Complaint

         After 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.

         After 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.

         The 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.

         Plaintiff 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.

         For these reasons, the first amended complaint is the operative complaint and the court will deny plaintiff's motion to amend and rule on ...