Marquez v. United States

Opinion

STEVE MARQUEZ Case No.: 18-CV-00434-CAB-NLS

Plaintiff, ORDER GRANTING MOTION FOR v. LEAVE TO FILE AN AMENDED COMPLAINT UNITED STATES OF AMERICA, et al.

Defendants. [Doc. No. 45]

On August 2, 2019, this Court granted Defendant United States’ motion to dismiss the FTCA claim for lack of subject matter jurisdiction, and Defendant United States was dismissed with prejudice. [Doc. No. 38.] In August 2, 2019 Order, the Court noted that the only claims that now remain in the case are the Eighth Amendment claims against John Doe #1, John Doe #2 and Jane Doe #1, and gave Plaintiff until September 30, 2019, to identify the Doe defendants and file a motion to amend the complaint to name the identified Doe defendants. [Doc. No. 38 at 9.] On September 25, 2019, Plaintiff filed a Request for Extension of Time, requesting additional time to identify the Doe defendants. [Doc. No. 41.] On September 30, 2019, this Court granted Plaintiff’s request and gave Plaintiff until November 29, 2019 to file a motion to amend the complaint to name the identified Doe defendants. [Doc. No. 42.] On November 29, 2019, Plaintiff filed a motion for leave to file an amended complaint. [Doc. No. 45.] In the motion, Plaintiff states that he has now identified John Doe #1 as C. Rodriguez. He requests that the other Doe defendants be dismissed and that he be granted leave to file an amended complaint adding C. Rodriguez as a defendant. Plaintiff's motion is GRANTED. Plaintiff shall file a First Amended Complaint adding C. Rodriguez as a defendant no later than January 10, 2020. All other Doe defendants are HEREBY DISMISSED WITHOUT PREJUDICE. Plaintiff is reminded that his First Amended Complaint must be complete in itself without reference to his original pleading. Defendants not named and any claims not re- alleged in the First Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an amended pleading may be “considered waived if not repled.’’) Dated: December 12, 2019 € BE Hon. Cathy Ann Bencivengo United States District Judge