(PC) Cain v. Paviglianti

Opinion

ANTONIO LAMONT CAIN, Case No. 2:20-cv-01768-JDP (PC) Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO AMEND THE COMPLAINT AND v. DENYING UNITED STATES OF AMERICA’S MOTIONS FOR B. PAVIGLIANTI1, CLARIFICATION AND FOR AN EXTENSION OF TIME Defendant. ECF Nos. 32, 33, 37 FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT BE DENIED ECF No. 35 Plaintiff is a federal prisoner proceeding without counsel in this Bivens action.2 The court previously screened plaintiff’s first amended complaint and found that it stated an Eighth Amendment excessive force claim against defendant Paviglianti. ECF No. 16. The U.S. Marshal

1 Plaintiff first amended complaint identified defendant as “B. Pauigliati.” ECF No. 13. Defendant has filed a waiver of service that explains that the correct spelling of his name is “B. Paviglianti.” ECF No. 31 at 1. Accordingly, the Clerk of the Court is directed to amend the case name to Cain v. Paviglianti, 2:20-cv-01768-JDP. 2 A reference to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Civil rights actions under § 1983 and Bivens “are identical save for the replacement of a state actor under [Section] 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). was directed to notify defendant of this action, and defendant subsequently filed a waiver of formal service. Plaintiff has since filed a motion to amend the complaint, ECF No. 33, and a motion for default judgment, ECF No. 35. The Federal Rules of Civil Procedure permit plaintiff to amend his complaint as a matter of course before service of a responsive pleading. See Fed. R. Civ. P. 15(a). Accordingly, his motion to amend is granted. He must file his amended complaint within thirty days of this order’s entry. Plaintiff is advised that his amended complaint will supersede the current complaint. See Lacey v. Maricopa Cnty., 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc). This means that the amended complaint must be complete on its face without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is filed, the current complaint no longer serves any function. Therefore, in an amended complaint, as in an original complaint, plaintiff must assert each claim and allege each defendant’s involvement in sufficient detail. The amended complaint should be titled “Second Amended Complaint” and refer to the appropriate case number. I recommend that plaintiff’s motion for default judgment, ECF No. 35, be denied. Defendant is required to file a response to the first amended complaint within sixty days of being served or sixty days of “service on the United States attorney, whichever is later.” Fed. R. Civ. P. 12(a)(3). Although defendant has filed a waiver of service, the United States attorney was never properly served. Consequently, the sixty-day deadline for defendant to file a responsive pleading never commenced, and therefore default judgment is not appropriate.3 Plaintiff is advised that, upon receipt, the court will screen his second amended complaint and, if appropriate, direct service on the United States attorney. Accordingly, it is hereby ORDERED that: 1. Plaintiff’s motion to amend the complaint, ECF No. 33, is granted. 2. Plaintiff shall file a second amended complaint within thirty days of the date of this 3 The United States Attorney’s office has filed a motion for clarification of the deadline to file a responsive pleading, ECF No. 32, and a motion for an extension of time to respond to plaintiff’s motion for default judgment, ECF No. 37. In light of the recommendation that plaintiff’s motion for default judgment be denied, those motions are denied as moot. order. 3. The United States Attorney’s office’s motion for clarification, ECF No. 32, and motion for an extension of time, ECF No. 37, are denied as moot. 4. The Clerk of the Court is directed to amend the case name to Cain v. Paviglianti, 2:20- cv-01768-JDP. 5. The Clerk of Court shall randomly assign a United States District Judge to this case. Further, it is RECOMMENDED that plaintiff's motion for default judgment, ECF No. 35, be denied. I submit these findings and recommendations to the district judge under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. The parties may, within 14 days of the service of the findings and recommendations, file written objections to the findings and recommendations with the court. Such objections should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings and recommendations under 28 U.S.C. § 636(b))(C). ( q oy — Dated: _ February 8, 2022 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE