Demerson v. Woodford et al

Filing 49

ORDER STRIKING 40 Notice filed by Edward Demerson; Requiring Plaintiff to File Third Amended Complaint within Thirty Days or Second Amended Complaint will be Deemed the Operative Pleading, signed by District Judge Lawrence J. O'Neill on 12/15/2009. (Amended Complaint due by 1/18/2010) (Martin, S)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 Plaintiff Edward Demerson, a state prisoner proceeding pro se, filed this civil rights action 16 pursuant to 42 U.S.C. § 1983 on January 29, 2008. The Court dismissed Plaintiff 's complaint, with 17 leave to amend, on September 22, 2008. Plaintiff filed an amended complaint on October 27, 2008, 18 and on February 26, 2009, the Court ordered Plaintiff to effect service of the amended complaint 19 within one-hundred twenty days. On June 24, 2009, Plaintiff filed a second amended complaint, and 20 21 Pleadings must be complete within themselves. Forsyth v. Humana, Inc., 114 F.3d 1467, 22 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); Local Rule 220. Plaintiff 23 may not add to his second amended complaint by submitting a separate amendment, and the July 6 24 partial amendment shall be stricken from the record. Id. 25 /// 26 27 28
Plaintiff erroneously titled his second amended complaint a third amended complaint. Plaintiff's d e s c r ip tio n of the pleading as a third amended complaint is disregarded.
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UNITED STATES DISTRICT COURT

EDWARD DEMERSON, Plaintiff, v. JEANNE S. WOODFORD, et al., Defendants.

CASE NO. 1:08-cv-00144-LJO-SMS PC ORDER STRIKING PARTIAL AMENDMENT FROM RECORD, AND REQUIRING PLAINTIFF TO FILE THIRD AMENDED COMPLAINT WITHIN THIRTY DAYS OR SECOND AMENDED COMPLAINT WILL BE DEEMED THE OPERATIVE PLEADING (Doc. 40) /

on July 6, 2009, Plaintiff filed a partial amendment to his second amended complaint.1

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Plaintiff has thirty days to file a third amended complaint that is complete within itself without reference to any other pleading. If Plaintiff fails to file a third amended complaint within thirty days, his second amended complaint will be deemed the operative pleading and will be screened by the Court.2 28 U.S.C. § 1915A. Accordingly, it is HEREBY ORDERED that: 1. Plaintiff's partial amendment to his second amended complaint, filed July 6, 2009, is STRICKEN from the record; 2. Plaintiff has thirty (30) days from the date of service of this order within which to file a third amended complaint that is complete within itself; and 3. If Plaintiff fails to file a third amended complaint within thirty days, his second amended complaint will be treated as the operative pleading and will be screened by the Court.

IT IS SO ORDERED. Dated: b9ed48 December 15, 2009 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

Plaintiff has exercised his right to amend once as a matter of course, and may not amend without leave of c o u r t. Fed. R. Civ. P. 15(a).

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