Coleman v. CDCR, et al.

Filing 43

ORDER 30 Granting Plaintiff's Motion to Amend Complaint; Fourth Amended Complaint due within Thirty Days; ORDER Denying Defendants' 32 39 Motion to Dismiss as Moot signed by Magistrate Judge Dennis L. Beck on 03/11/2011. Amended Complaint due by 4/13/2011. (Flores, E)

(PC) Coleman v. CDCR, et al.

Doc. 43

1 2 3 4 5 6 ROBERT E. COLEMAN, 7 Plaintiff, 8 v. 9 CDCR, et al., 10 Defendants. 11 / 12 13 Plaintiff Robert E. Coleman ("Plaintiff") is a prisoner in the custody of the California ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS AS MOOT (DOCS. 32, 39) FOURTH AMENDED COMPLAINT DUE WITHIN THIRTY DAYS ORDER GRANTING PLAINTIFF'S MOTION TO AMEND COMPLAINT (DOC. 30) CASE NO. 1:09-CV-00224-DLB PC

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

14 Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in 15 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding 16 on Plaintiff's third amended complaint, filed May 3, 2010, against Defendants A. Diaz, M. 17 Lopez, and P. Maldonado for retaliation in violation of the First Amendment. 18 Pending before the Court is Plaintiff's motion to amend his complaint, filed September

19 22, 2010. Doc. 30. Plaintiff contends that additional claims arose involving Institutional 20 Classification Committee members T. Norton, S. Rousseau, and R. Chavez. Plaintiff contends 21 that these Defendants assessed Plaintiff an indeterminate SHU detention pursuant to an invalid 22 policy on August 19, 2010, in retaliation for Plaintiff filing inmate grievances and this action. 23 Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, leave to amend should

24 be freely given as justice requires. As it appears that Plaintiff's additional claims are related to 25 the same transaction in this action, and the action is in early proceedings, the Court will grant 26 Plaintiff an opportunity to file a fourth amended complaint in this action. The Court does not 27 accept piecemeal pleadings. See L. R. 220 ("[E]very pleading to which an amendment or 28 supplement is permitted as a matter of right or has been allowed by court order shall be retyped 1
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1 and filed so that it is complete in itself without reference to the prior or superseded pleading."). 2 Thus, claims not alleged in the fourth amended complaint are waived. Forsyth v. Humana, Inc., 3 114 F.3d 1467, 1474 (9th Cir. 1997). 4 Plaintiff is reminded that a complaint must contain "a short and plain statement of the

5 claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual 6 allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, 7 supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 8 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set 9 forth "sufficient factual matter, accepted as true, to `state a claim that is plausible on its face.'" 10 Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal 11 conclusions are not. Id. Upon filing, the Court will screen Plaintiff's fourth amended complaint 12 pursuant to 28 U.S.C. § 1915A. Plaintiff is reminded that he is to concurrently serve Defendants 13 with his fourth amended complaint, pursuant to Federal Rule of Civil Procedure 5 and Local 14 Rule 135(f). 15 Because Plaintiff will file a fourth amended complaint, the Court will deny Defendants'

16 motions to dismiss, filed October 6, 2010 and January 19, 2011, as moot. 17 18 19 20 21 22 23 24 25 26 27 28 2 4. 3. 2. Based on the foregoing, it is HEREBY ORDERED that 1. Plaintiff's motion to file a fourth amended complaint, filed September 22, 2010, is GRANTED; Plaintiff is to file his fourth amended complaint and serve Defendants his fourth amended complaint within thirty (30) days from the date of service of this order; Defendants' motions to dismiss for failure to state a claim, filed October 6, 2010 and January 19, 2011, are DENIED as moot; and Failure to comply with this order may result in dismissal of this action.

IT IS SO ORDERED. Dated: 3b142a

March 11, 2011

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE