(PC) Aguilar v. Taylor

• Court: District Court, E.D. California
• Decided: March 5, 2024
• Docket: 1:23-cv-01512
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDGAR AGUILAR, Case No. 1:23-cv-01512-HBK (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION

13 v. (Doc. No. 10)

14 CALIFORNIA DEPARTMENT OF ORDER DIRECTING CLERK TO DOCKET CORRECTIONS AND PLAINTIFF’S LODGED “SECOND 15 REHABILITATION, FERNANDO AMENDED COMPLAINT” ALVAREZ, and BRIAN TAYLOR, 16 (Doc. No. 10 at 8-16). Defendants. 17 18 Plaintiff Edgar Aguilar (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On November 30, 2023, the 20 Court screened Plaintiff’s initial Complaint and found that it failed to state a claim. (Doc. No. 7). 21 The Court afforded Plaintiff the option to either (1) file an amended complaint, (2) file a notice to 22 stand on his complaint subject to the undersigned recommending the district court dismiss the 23 Complaint, or (3) file a notice of voluntary dismissal. (Id. at 6-7). On December 14, 2023, the 24 Clerk received and docketed Plaintiff’s First Amended Complaint. (Doc. No. 8). On February 25 16, 2024, prior to the Court screening the First Amended Complaint, Plaintiff filed a Motion 26 requesting permission to file a new first amended complaint. (Doc. No. 10, “Motion”). Plaintiff 27 attaches a proposed amended complaint to his Motion. (Id. at 8-16). It appears Plaintiff filed the 28 First Amended Complaint before he received the Court’s November 30, 2023 Screening Order 1 | and wishes to substitute the attached amended complaint in place of the First Amended 2 | Complaint that was docketed on February 16, 2024. 3 Federal Rule of Civil Procedure 15 permits a party to file an amended complaint once as a 4 | matter of course no later than: (A) 21 days after serving it, or (B) if the pleading is one to which a 5 || responsive pleading is required, 21 days after service of a responsive pleading or 21 days after 6 || service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)({1). A 7 | pro se litigant is entitled to an opportunity to amend their complaint before dismissal of the 8 | action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court will 9 | grant the Motion and direct the Clerk of Court to accept the amended complaint Plaintiff attaches 10 | to his Motion (Doc. No. 10 at 8-16). The Court will deem this later filed complaint the operative 11 | complaint in this matter. For purposes of clarification, the Court will retitle the proposed 12 | pleading as Plaintiff’s “Second Amended Complaint” and will screen it in due course. 13 Accordingly, it is hereby ORDERED: 14 1. Plaintiff's Motion (Doc. No. 10) is GRANTED. 15 2. The Clerk of Court is directed to accept the proposed first amended complaint contained 16 within Plaintiff's Motion (Doc. No. 10 at 8-16) and shall docket it as a separate pleading 17 and retitle it “Second Amended Complaint.” 18 3. The Court deems the Second Amended Complaint the operative complaint in this matter 19 and will screen it in due course. 20 | Dated: _ March 5, 2024 Mile. Wh. foareh fackte 22 HELENA M. BARCH-KUCHTA 33 UNITED STATES MAGISTRATE JUDGE

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