(PC) Puckett v. Kelso

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DURRELL ANTHONY PUCKETT, Case No. 1:23-cv-00054-KES-HBK (PC) 12 Plaintiff, ORDER DIRECTING DEFENDANTS TO RESPOND TO PLAINTIFF’S MOTION TO 13 v. AMEND AND MOTION FOR VOLUNTARY DISMISSAL 14 J. BARRIOS, et al., ORDER DIRECTING CLERK TO REFILE 15 Defendants. MISFILED PLEADING 16 (Doc. No. 92, 96) 17 18 19 Pending before the Court is Plaintiff Durrell Anthony Puckett’s Motion to Amend filed 20 October 21, 2024. (Doc. No. 92). Plaintiff’s Motion is accompanied by a lodged fourth amended 21 complaint. (Doc. No. 93). Plaintiff proceeds on his third amended complaint that alleges an 22 Eighth Amendment conditions of confinement claim against Defendants Baraona, J. Barrios, 23 Gaxiola, T. Campbell, White, and Hernandez. (Doc. No. 73). To the extent discernable in his 24 lodged fourth amended complaint, Plaintiff seeks to add a new defendant, K. Allison as a 25 defendant, and seeks to allege an Eighth Amendment medical indifference claim. (See generally 26 Doc. No. 93). Plaintiff is not permitted leave to amend his operative complaint as a matter of 27 course. Federal Rule of Civil Procedure 15(a)(1) permits the amendment of a pleading only once 28 as a matter of course. Federal Rule of Civil Procedure 15(a)(2) allows Plaintiff to amend his 1 complaint, “only with the opposing party's written consent or the court's leave.” Fed. R. Civ. P. 2 15(a)(2). Defendants’ opposition, if any, the Motion to Amend is due no later than November 3 12, 2024.1 Local Rule 230(l). 4 Also pending is Plaintiff’s Motion for Voluntary Dismissal filed November 4, 2024. 5 (Doc. No. 96).2 Plaintiff seeks to dismiss with prejudice Defendants Barrios and Gaxiola. (Id.). 6 The Court construes the Motion to Dismiss as filed pursuant to Rule 41(a)(2) of the Federal Rules 7 of Civil Procedure because Defendants Barrios and Gaxiola previously answered the operative 8 third amended complaint. Fed. R. Civ. P. 41(a)(2) (“Except as provided in Rule 41(a)(1), an 9 action may be dismissed at the plaintiff’s request only by court order, on terms that the court 10 considers proper”); see also Thacker v. AT&T Corp., 2021 WL 3206202, at *2 (E.D. Cal. July 29, 11 2021), report and recommendation adopted, 2021 WL 4168533 (E.D. Cal. Sept. 14, 2021). 12 Defendants’ opposition, if any, is due no later than November 25, 2024. Local Rule 230(l). 13 Absent consent, both motions require a magistrate judge to address the requested relief by 14 findings and recommendations to the district court. See, e.g., Jones v. Ayon, 2024 WL 4625809, 15 at *1 (E.D. Cal. Oct. 30, 2024) (adopting magistrate judge’s findings and recommendations to 16 granting Rule 41(a)(2) motion); see also Bastidas v. Chappell, 791 F.3d 1155, 1163 (9th Cir. 17 2015) (noting that denial of a motion to amend may be dispositive and thus require a magistrate 18 judge to issue findings and recommendations). For matter of judicial efficiency, the Court will 19 direct Defendants to file an expedited opposition or statement on non-opposition to the Motion to 20 Dismiss no later than November 15, 2024 in order that the undersigned may address both 21 Motions in a consolidated findings and recommendation, if appropriate. 22 Accordingly, it is ORDERED: 23 1. Defendants shall file responses to Plaintiff’s Motion to Amend (Doc. No. 92) no later 24 than November 12, 2024 and Plaintiff’s Motion for Voluntary Dismissal (Doc. No. 25 96) no later than November 15, 2024. 26 1 The court is closed on Monday, November 11, 2024, in recognition of Veteran’s Day, a federal holiday. 27 2 Upon review of the Motion to Dismiss, the Court finds the Clerk inadvertently filed Plaintiff’s Supplement to Motion for Summary Judgment as part of the Motion to Dismiss. The Court will direct the 28 Clerk to correct the misfiled pleading. 1 2. Within 10 days of this Order, Defendants shall return the Consent/Decline to 2 Jurisdiction of Magistrate Judge form available on the court’s website under Civil 3 Forms: https://www.caed.uscourts.gov/caednew/index.cfm/forms/civil. 4 3. The Clerk of Court is directed to refile Plaintiff's misfiled pleading titled “Supplement 5 for Motion for Summary Judgment” (Doc. No. 96 at 2) as a separate pleading and 6 delete the corresponding pleading from the Motion for Voluntary Dismissal. 7 8 Dated: _ November 7, 2024 ooo. Th. Bareh Hack 9 HELENA M. BARCH-KUCHTA 10 UNITED STATES MAGISTRATE JUDGE

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28