(PC) Birrell v. DiTomas

• Court: District Court, E.D. California
• Decided: February 1, 2024
• Docket: 2:22-cv-01834
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID WESLEY BIRRELL, aka Bella- No. 2:22-CV-1834-KJM-DMC-P Christina Birrell, 12 Plaintiff, 13 ORDER v. 14 MICHELLE DiTOMAS, 15 Defendant. 16

17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 19 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s first amended complaint. See ECF No. 20 27. 21 The Federal Rules of Civil Procedure provide that a party may amend his or her 22 pleading once as a matter of course within 21 days of serving the pleading or, if the pleading is 23 one to which a responsive pleading is required, within 21 days after service of the responsive 24 pleading, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service of a motion under Rule 25 12(b), (e), or (f) of the rules, whichever time is earlier, see Fed. R. Civ. P. 15(a)(1)(B). In all 26 other situations, a party’s pleadings may only be amended upon leave of court or stipulation of all 27 the parties. See Fed. R. Civ. P. 15(a)(2). 28 / / / 1 Here, Defendant filed a motion to dismiss under Federal Rule of Civil Procedure 2 | 12(b)(6) on June 30, 2023. See ECF No. 19. Thus, any amendment-as-of-rght was due within 3 || 21 days of this date. See Fed. R. Civ. P. 15(1)(1)(B). Plaintiff's first amended complaint was 4 || filed on January 16, 2024 — more than 21 days after June 30, 2023. See ECF No. 27. 5 Where, as here, a party files an amended complaint without the right to do so or 6 || leave of court having been previously granted, it is properly stricken by the Court. See, e.g., 7 || Hardin v. Wal-Mart Stores, Inc., 813 F. Supp. 2d 1167, 1181 (E.D. Cal. 2011) (striking fourth 8 || amended complaint: “If an amended pleading cannot be made as of right and is filed without 9 || leave of court or consent of the opposing party, the amended pleading is a nullity and without 10 | legal effect.”); Sexton v. Spirit Airlines, Inc., Case No. 2:21-cv-00898-TLN-AC, 2022 WL 11 | 976914 (E.D. Cal. March 31, 2022) (striking amended complaint); Guthrie v. Hurwitz, Case No. 12 | 1:18-cv-00282-AWI-BAM, 2018 WL 4005261, at *1 (E.D. Cal. Aug. 20, 2018) (striking 13 || amended complaint). 14 Defendant’s motion to dismiss Plaintiffs original complaint will be addressed by 15 || separate findings and recommendations. 16 Accordingly, IT IS HEREBY ORDERED that Plaintiffs first amended complaint, 17 || ECF NO. 27, is STRICKEN. This Order is without prejudice to any further effort by Plaintiff to 18 || properly seek leave of Court to file the subject First Amended Complaint. 19 20 | Dated: January 31, 2024 Co 21 DENNIS M. COTA 02 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28