Sconiers v. Whitmore et al

Filing 13

ORDER ADOPTING 6 Findings and Recommendations Regarding Plaintiff's Complaint 1 ; ORDER DIRECTING Plaintiff to File a First Amended Complaint No Later than Thirty Days After the Date of Service of this Order, ORDER DEEMING 9 Objections to I nclude A Motion for Leave to File An Amended Complaint and A Motion for Leave to File Other Applications for Relief; ORDER DENYING 9 Plaintiff's Motions for Leave to File An Amended Complaint and Requests for Other Relief; ORDER STRIKING Plaintiff's First Amended Complaint, Motion, and Declaration (Docket Items 10-12), Signed by District Judge Lawrence J. O'Neill on 2/5/2009. Amended Complaint due by 3/16/2009. (Arellano, S.)

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UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 v. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is proceeding pro se with an action for damages and other relief concerning alleged civil rights violations. The matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-304. 1 ORDER STRIKING PLAINTIFF'S FIRST AMENDED COMPLAINT, MOTION, AND DECLARATION (DOCS. 10-12) CLARENCE WHITMORE, SR., et al., Defendants. JANETTA SCONIERS, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-1288-LJO-SMS ORDER ADOPTING FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S COMPLAINT (DOCS. 6, 1, 9) ORDER DIRECTING PLAINTIFF TO FILE A FIRST AMENDED COMPLAINT NO LATER THAN THIRTY DAYS AFTER THE DATE OF SERVICE OF THIS ORDER ORDER DEEMING OBJECTIONS TO INCLUDE A MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT AND A MOTION FOR LEAVE TO FILE OTHER APPLICATIONS FOR RELIEF (DOC. 9) ORDER DENYING PLAINTIFF'S MOTIONS FOR LEAVE TO FILE AN AMENDED COMPLAINT AND REQUESTS FOR OTHER RELIEF (DOC. 9)

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I. Request for Leave to File Amended Complaint and Other Applications for Relief; First Amended Complaint On December 1, 2008, Magistrate Judge Sandra M. Snyder filed

3 findings and a recommendation that the Court dismiss Plaintiff's 4 complaint in part without leave to amend and dismiss Plaintiff's 5 complaint in part with leave to amend because of various legal 6 deficiencies; further, Plaintiff's claims based on state law, 7 which have not yet been screened, could be restated in an amended 8 complaint. Plaintiff was granted thirty days within which to file 9 objections. The findings and recommendation were served on all 10 parties on December 1, 2008. 11 On February 3, 2009, Plaintiff filed what was entitled 12 "OBJECTIONS TO MAGISTRATE JUDGE FINDINGS AND RECOMMENDATIONS." 13 Review of this document reveals that in it Plaintiff sought leave 14 to file an amended complaint and other requests for relief, 15 apparently including a motion for a temporary restraining order, 16 writ of mandate, and order to show cause re: preliminary 17 injunction. (Objs. ¶¶ 2-5.) The Court therefore DEEMS Plaintiff's 18 objections to include a request for leave to file an amended 19 complaint and other requests for relief. 20 Further, on February 3, 2009, after having sought permission 21 to do so but without having received such permission, Plaintiff 22 filed a purported first amended complaint as well as a motion for 23 temporary restraining order (TRO) and supporting declaration. 24 (Docs. 12, 10-11.) 25 The Court will deny Plaintiff's present motion for leave to 26 file an amended complaint. This is because the Court herein 27 adopts the Magistrate Judge's pending findings and 28 2

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recommendations and thus permits Plaintiff to file an amended complaint, but only in compliance with the Court's findings and recommendations. Therefore, another request for leave to file an amended complaint is unnecessary. In addition, the first amended complaint that Plaintiff will file in the future must comply with the Court's determinations in the adopted findings and recommendations, which include dismissal of some claims without leave to amend; thus, Plaintiff is only granted leave to amend to the extent permitted by the Court's determination in connection with the original complaint. Plaintiff will not be permitted to bypass the determinations of the Court with respect to the adequacy of the claims pled in the original complaint or otherwise to render meaningless the already significant expenditure of the Court's resources in the process of screening Plaintiff's complaint. A court has inherent power to control its docket and the disposition of its cases with economy of time and effort for both the court and the parties. Landis v. North American Co., 299 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). The Court exercises its discretion to require Plaintiff's first amended complaint to be filed only in compliance with this order. Further, because no complaint that has been screened and served is presently pending, Plaintiff's motion for a TRO is prematurely filed. Plaintiff IS INFORMED that in a case in which the Plaintiff is proceeding in forma pauperis, the Court is required to screen the complaint and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the 3

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action or appeal is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Therefore, the Court will direct the United States Marshal to serve Plaintiff's complaint only after the Court has screened the complaint and determined that it contains cognizable claims for relief against the named defendants. It is premature to file law and motion matters before any first amended complaint, which Plaintiff will file, is screened by the Court, an order to serve the complaint has issued from the Court, and the complaint has been served. Because of the large number of pending matters before it, the Court will screen Plaintiff's complaint in due course. Accordingly, the motion to file a first amended complaint will be denied, and the first amended complaint filed on February 3, 2009, will be stricken without prejudice to Plaintiff's filing a first amended complaint as directed in this order. The motion for temporary restraining order, writ of mandate, etc., and the declaration of Plaintiff in support thereof, filed on February 3, 2009, will also be stricken as prematurely filed. II. Adoption of the Findings and Recommendations The undersigned has considered the objections and has determined there is no need to modify the findings and recommendations based on the points raised in the objections. In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, 4

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the Court finds that the findings and recommendation are supported by the record and proper analysis. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations filed December 1, 2008, are ADOPTED IN FULL; and 2. With respect to claims two through seven of Plaintiff's complaint, Plaintiff's complaint IS DISMISSED WITHOUT LEAVE TO AMEND for failure to state a basis for subject matter jurisdiction in this Court and/or because this Court should abstain from exercising jurisdiction; and 3. With respect to claims eight through eleven, Plaintiff's complaint IS DISMISSED WITHOUT LEAVE TO AMEND for failure to state a claim upon which relief may be granted and/or failure to state a basis for subject matter jurisdiction in this Court; and 4. With respect to claims one, twelve through twenty-nine, and thirty, and related derivative claims seeking injunctive or declaratory relief (claims thirty-one and thirty-two), Plaintiff's complaint IS DISMISSED WITH LEAVE TO AMEND; and 5. With respect to Plaintiff's pendent state claims in the original complaint, claims thirty-three through fifty-one, which have not yet been screened by the Court, Plaintiff MAY RESTATE such claims in the amended complaint; and 6. Plaintiff's first amended complaint (Doc. 12); motion for temporary restraining order, writ of mandate, etc. (Doc. 10); and supporting declaration (Doc. 11) ARE STRICKEN; and 7. Plaintiff IS GRANTED thirty days from the date of service of this order to file a first amended complaint that complies with this order, the requirements of the pertinent substantive 5

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law, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned this case and must be labeled "First Amended Complaint"; failure to file an amended complaint in accordance with this order will be considered to be a failure to comply with an order of the Court pursuant to Local Rule 11-110 and will result in dismissal of this action. Further, failure to file an amended complaint that states a claim upon which relief may be granted will be considered to be grounds for dismissing the complaint pursuant to 28 U.S.C. § 1915(e)(2) and will result in dismissal of the action. IT IS SO ORDERED. Dated: 66h44d February 5, 2009 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

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