(PC) Lewis v. Garcia

Opinion

1 2 3 4 5 6 7 10 11 DARONTA TYRONE LEWIS, No. 2:20-CV-0399-TLN-DMC-P 12 Plaintiff, 13 v. ORDER 14 P. GARCIA, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court are the following, all filed after Plaintiff filed a 19 second amended complaint on July 1, 2024, ECF No. 110: (1) Plaintiff's motion for leave to file 20 additional pages to his second amended complaint, see ECF No. 114; (2) Plaintiff's pleading 21 entitled "Second Amended Complaint," see ECF No. 115 (docketed as Plaintiff's third amended 22 complaint); (3) Plaintiff's motion for an order directing service of the amended complaint at ECF 23 No. 115, see ECF No. 113; (4) Plaintiff's motion for an order directing service of the amended 24 pleadings at ECF Nos. 110 and 115, see ECF No. 116; and (5) Plaintiff's motion to correct his 25 amended pleadings at ECF Nos. 110 and 115, see ECF No. 117. 26 / / / 27 / / / 28 / / / 1 Pursuant to the Court's June 13, 2024, order, Plaintiff's amended pleading at ECF 2 No. 110 was filed with leave. The amended pleading at ECF No. 115, however, was not. The 3 Court will strike the amended complaint at ECF No. 115 as having been filed without leave of 4 court. See, e.g., Hardin v. Wal-Mart Stores, Inc., 813 F. Supp. 2d 1167, 1181 (E.D. Cal. 2011) 5 (striking fourth amended complaint: “If an amended pleading cannot be made as of right and is 6 filed without leave of court or consent of the opposing party, the amended pleading is a nullity 7 and without legal effect.”); Sexton v. Spirit Airlines, Inc., Case No. 2:21-cv-00898-TLN-AC, 8 2022 WL 976914 (E.D. Cal. March 31, 2022) (striking amended complaint); Guthrie v. Hurwitz, 9 Case No. 1:18-cv-00282-AWI-BAM, 2018 WL 4005261, at *1 (E.D. Cal. Aug. 20, 2018) 10 (striking amended complaint). 11 Given that Plaintiff seeks to correct his filing at ECF No. 110 and given that the 12 pleading at ECF No. 115 will be stricken, the Court will deny as moot Plaintiff's requests for 13 service of the pleadings at ECF Nos. 110 and 115. 14 Finally, because pleadings must be complete in and of themselves without 15 reference to prior pleadings, see Local Rule 220, the Court will grant Plaintiff's requests regarding 16 filing additional pages and corrections in support of the second amended complaint at ECF No. 17 110, which is currently the operative pleading. Plaintiff will be provided leave to file a new 18 second amended complaint. Plaintiff is cautioned that, if he does not file a new second amended 19 complaint within the time permitted therefor, the action will proceed on the current second 20 amended complaint at ECF No. 110 without further leave to correct or supplement. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / ] Accordingly, IT IS HEREBY ORDERED as follows: 2 1. Plaintiff's amended complaint at ECF No. 115 is STRICKEN. 3 2. Plaintiff's motions at ECF Nos. 113 and 116 for an order directing service 4 | of Plaintiff's amended complaints at ECF Nos. 110 and 115 are DENIED as moot. 5 3. Plaintiff's motions at ECF Nos. 114 and 117 to correct his prior pleading 6 | are GRANTED. 7 4. Plaintiff may file a new second amended complaint, which is complete in 8 | and of itself and contains all of Plaintiff's allegations, within 30 days of the date of this order. 9 10 | Dated: August 26, 2024 Ss..c0_, DENNIS M. COTA 2 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28