Smith v. Schwarzenegger et al

Filing 70

ORDER signed by District Judge Susan R. Bolton on 1/4/2013 denying 67 Motion to Amend the Complaint; substituting Defendant Appeals Coordinator H. Martinez as Defendant Appeals Coordinator John Doe, Clerk to add H. Martinez as a defendant to action. Clerk to send Plaintiff service packet including 64 Amended Prisoner Civil Rights Complaint. (Case Management Deadline: 2/11/2013 for plaintiff to return service documents). (Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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Michael Lenoir Smith,
Plaintiff,

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vs.

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Arnold Schwarzenegger, et al.,
Defendants.

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No. CV 1-07-1547-SRB
ORDER

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Pending before the Court is Plaintiff’s December 21, 2012 Motion and Request for

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Leave to Amend (Doc. 67) and lodged Fifth Amended Complaint. The Court will deny the

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Motion for Leave to Amend. The Court will also substitute Defendant Appeals Coordinator

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H. Martinez for Defendant Appeals Coordinator John Doe and will require Defendant

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Martinez to answer the Fourth Amended Complaint.

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I.

Background

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On November 29, 2012, the Court issued a screening order determining that, liberally

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construed, Plaintiff’s Fourth Amended Complaint states claims against Defendants Cate,

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Yates, Woodford, and Appeals Coordinator John Doe. The Court ordered service on

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Defendant Woodford and required Defendants Cate and Yates to answer the Fourth

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Amended Complaint. The Court did not order service on the John Doe Defendant.

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In his Motion for Leave to Amend, Plaintiff states that he has discovered the name of

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the John Doe Defendant and requests that the Court accept his Fifth Amended Complaint

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which names the John Doe Defendant.

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The Court has reviewed Plaintiff’s proposed Fifth Amended Complaint and finds that

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it is significantly less detailed than Plaintiff’s Fourth Amended Complaint and raises claims

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against Defendants that have been previously screened out. Further, the Fifth Amended

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Complaint raises a new claim with factual allegations that are not sufficient to state an Eighth

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Amendment claim. Finally, the Court notes that Defendants Cate and Yates have already

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answered the Fourth Amended Complaint and that Plaintiff has submitted the documents

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necessary to serve the Fourth Amended Complaint on Defendant Woodford. The Court will

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therefore deny Plaintiff’s Motion for Leave to Amend.

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However, in the interests of justice and moving this case forward, the Court will

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substitute the named Defendant, Appeals Coordinator H. Martinez, for Defendant Appeals

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Coordinator John Doe. The Court will also order service of the Fourth Amended Complaint

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on Defendant Martinez and will require Defendant Martinez to answer the Fourth Amended

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Complaint.

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Plaintiff should note that absent extraordinary circumstances, the Court will not permit

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any further amendment of Plaintiff’s claims.

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II.

Warnings

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A.

Address Changes

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Plaintiff must file and serve a notice of a change of address in accordance with Rule

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83-182(f) and 83-183(b) of the Local Rules of Civil Procedure. Plaintiff must not include

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a motion for other relief with a notice of change of address. Failure to comply may result in

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dismissal of this action.

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Plaintiff must submit an additional copy of every filing for use by the Court. See

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LRCiv 5-133(d)(2). Failure to comply may result in the filing being stricken without further

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notice to Plaintiff.

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B.

Copies

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C.

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If Plaintiff fails to timely comply with every provision of this Order, including these

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warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to

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comply with any order of the Court).

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IT IS ORDERED:
(1)

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Possible Dismissal

Plaintiff’s December 21, 2012 Motion and Request for Leave to Amend

(Doc. 67) is denied.
(2)

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Defendant Appeals Coordinator H. Martinez is substituted for Defendant

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Appeals Coordinator John Doe; the Clerk of Court must add H. Martinez as a Defendant to

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this action.
(3)

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Defendant Martinez must answer the Fourth Amended Complaint within the

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time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil

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Procedure.
(4)

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The Clerk of Court must send Plaintiff a service packet including the Fourth

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Amended Complaint (Doc. 64), this Order, a Notice of Submission of Documents form, an

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instruction sheet, and copies of summons and USM-285 forms for Defendant Martinez.
(5)

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Within 30 days of the date of filing of this Order, Plaintiff must complete and

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return to the Clerk of Court the Notice of Submission of Documents. Plaintiff must submit

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with the Notice of Submission of Documents: a copy of the Fourth Amended Complaint for

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Defendant Martinez, a copy of this Order for Defendant Martinez, a completed summons for

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Defendant Martinez, and a completed USM-285 for Defendant Martinez.
(6)

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Plaintiff must not attempt service on Defendant and must not request waiver

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the required documents, the Court will direct the United States Marshal to seek waiver of

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service from Defendant or serve Defendant.

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...

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of service. Once the Clerk of Court has received the Notice of Submission of Documents and

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(7)

If Plaintiff fails to return the Notice of Submission of Documents and the

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required documents within 30 days of the date of filing of this Order, the Clerk of Court

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must, without further notice, enter a judgment of dismissal of this action without

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prejudice as to Defendant Martinez. See Fed. R. Civ. P. 41(b).

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DATED this 4th day of January, 2013.

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