Demerson v. Woodford et al

Filing 64

ORDER STRIKING 58 STATUS REPORT FILED BY PLAINTIFF, signed by District Judge Lawrence J. O'Neill on 06/23/2010. (Martin, S)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 Plaintiff Edward Demerson, is a state prisoner proceeding pro se, filed this civil rights 16 action pursuant to 42 U.S.C. § 1983 on January 29, 2008. 17 The Court dismissed Plaintiff 's complaint, with leave to amend, on September 22, 2008. 18 (Doc. 26.) Plaintiff filed an amended complaint on October 27, 2008. (Doc. 27.) On February 19 26, 2009, the Court ordered Plaintiff to effect service of the amended complaint within one20 hundred twenty days. (Doc. 33.) On June 24, 2009, Plaintiff filed the Second Amended 21 Complaint. (Doc. 39.) On July 6, 2009, Plaintiff filed a partial amendment to his Second 22 23 amendment from the record and requiring Plaintiff to file a third amended complaint, if any, 24 within thirty days or the second amended complaint would be deemed the operative pleading. 25 (Doc. 49.) Over the last eleven months, Plaintiff has filed multiple notices indicating that a third 26 27 28
Plaintiff erroneously titled his second amended complaint a third amended complaint. Plaintiff's description of the pleading as a third amended complaint is disregarded.
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UNITED STATES DISTRICT COURT

EDWARD DEMERSON, Plaintiff, v.

CASE NO. 1:08-cv-00144-LJO-SMS PC ORDER STRIKING STATUS REPORT FILED BY PLAINTIFF (Doc. 58.)

JEANNE S. WOODFORD, et al., Defendants. /

Amended Complaint.1 (Doc. 40.) On December 15, 2009, an order issued striking the partial

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amended complaint is en route, pending, or completed, and would be mailed/filed shortly. (Docs. 41, 44-48, and 50-55.) However, Plaintiff did not file a third amended complaint such that Plaintiff's Second Amended Complaint, filed on June 24, 2009, was deemed the operative pleading in this case.2 On June 22, 2010, Plaintiff's Second Amended Complaint was screened was found to have stated cognizable claims against Defendants Phillips, Campos, Amaro, Clausing, Bardonnex, Sgt. Munoz, and Lt. Cartagina for using excessive physical force against Plaintiff and against Sgt. Munoz, Lt. Cartagina, Nurse Gregory, and Psyche Tech G. Hillard for deliberate indifference to Plaintiff's serious medical needs ­ all other Defendants and claims were dismissed. (Doc. 59.) In that same order, multiple notices which Plaintiff had filed indicating that a third amended complaint was en route, pending, or completed and would be mailed/filed shortly were stricken from the record. (Doc. 41, 44-48, and 50-57.) On June 18, 2010, Plaintiff filed yet another status report indicating that a third amended complaint was forthcoming, which was not entered on the docket until June 21, 2010 ­ at which time the screening order was already being processed for docketing, else this latest status report would have been stricken in the screening order as well. (Doc. 58.) The Second Amended Complaint, filed June 24, 2009 is the operative pleading in this case. Accordingly, IT IS ORDERED that Plaintiff's status report, filed June 18, 2010 is STRICKEN from the record.

IT IS SO ORDERED. Dated: b9ed48 June 23, 2010 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

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Plaintiff has exercised his right to amend once as a matter of course and may not amend again without

le a v e of court. Fed. R. Civ. P. 15(a).

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