McElroy v. Cox et al

Filing 29

ORDER Striking Lodged First Amended Complaint From The Docket 28 , signed by District Judge Jeffrey T. Miller on 12/4/2009. It is ORDERED that: The Clerk of Court shall strike Plaintiff's "lodged" First Amended Complaint from the Court's docket (Doc. No. 28 ).(Scrivner, E)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R O Y COX, et al., Defendants. vs. L A T W A H McELROY, C D C R #P-71922, P l a in tif f , Civil No. 08-1221 JTM (AJB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION

O R D E R STRIKING LODGED FIRST A M E N D E D COMPLAINT FROM T H E DOCKET

I. PROCEDURAL HISTORY On August 19, 2008, Plaintiff, a state inmate currently incarcerated at the California State Prison located in Sacramento, California and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a) to commence a civil action; instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2].
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The Court granted Plaintiff's Motion to Proceed IFP on August 21, 2008 [Doc. No. 4]. On November 26, 2008, this matter was reassigned to District Judge Jeffrey T. Miller for all further proceedings [Doc. No. 7]. Defendants were served and filed a Motion to Dismiss pursuant to FED.R.CIV.P. 12(b) which was denied by Court. Defendants filed their Answer on September 1, 2009 [Doc. No. 21]. On November 25, 2009, Plaintiff "lodged" a First Amended Complaint with the Court [Doc. No. 28]. II. DISCUSSION Federal Rules of Civil Procedure 15(a)(1) provides, in part, that a "party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." FED.R.CIV.P. 15(a)(1). Here, Defendants filed their Answer almost three months prior to Plaintiff's attempt to file an Amended Complaint. Thus, Plaintiff must seek leave of Court if he wishes to file a First Amended Complaint. See FED.R.CIV.P. 15(a)(2). I I I. CONCLUSION AND ORDER Good cause appearing, IT IS HEREBY ORDERED that: The Clerk of Court shall strike Plaintiff's "lodged" First Amended Complaint from the Court's docket [Doc. No. 28].
D A T E D : December 4, 2009 Hon. Jeffrey T. Miller United States District Judge

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