Simmons v. CDCR et al

Filing 26

ORDER STRIKING Second Amended Complaint as Improperly Filed; ORDER DENYING Defendant CDCR's 23 Request for Screening Order as Moot, signed by Magistrate Judge Gary S. Austin on 5/9/2014. Thirty-Day Deadline for Plaintiff to Properly File a Second Amended Complaint. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER SIMMONS,

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Plaintiff,
vs.

1:10-cv-00553-AWI-GSA-PC
ORDER STRIKING SECOND
AMENDED COMPLAINT AS
IMPROPERLY FILED
(Doc. 22.)

JONATHAN AKANNO, et al.,
Defendants.

ORDER DENYING DEFENDANT
CDCR’S REQUEST FOR SCREENING
ORDER AS MOOT
(Doc 23.)
THIRTY-DAY DEADLINE FOR
PLAINTIFF TO PROPERLY FILE A
SECOND AMENDED COMPLAINT

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This is a civil action filed by Christopher Simmons (APlaintiff@), a state prisoner

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proceeding with counsel. This action was initiated by civil complaint filed by Plaintiff in the

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Kern County Superior Court on December 17, 2009 (Case #S-1500-CV-269232, DRL). On

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March 29, 2010, defendant California Department of Corrections and Rehabilitation (CDCR)

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(“Defendant”) removed the case to federal court by filing a Notice of Removal of Action

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pursuant to 28 U.S.C. ' 1441(a). (Doc. 1.) On March 8, 2012, Plaintiff filed the First

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Amended Complaint. (Doc. 13.) On July 18, 2013, the court dismissed the First Amended

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Complaint, with leave to amend. (Doc. 19.)
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On October 3, 2013, Attorney Scottlynn J. Hubbard IV filed a Second Amended

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Complaint on Plaintiff’s behalf. (Doc. 22.) On October 7, 2013, Defendant CDCR requested

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the court to screen Plaintiff=s Second Amended Complaint under 28 U.S.C. ' 1915A and grant

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Defendant an extension of time in which to file a responsive pleading. (Doc. 23.) On May 8,

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2014, the court issued an order denying the substitution of Attorney Scottlynn J. Hubbard IV as

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counsel for Plaintiff, on procedural grounds. (Doc. 25.)

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Because Attorney Hubbard filed the Second Amended Complaint on Plaintiff’s behalf

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without approval of a substitution of attorneys by the court, the Second Amended Complaint

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was improperly filed. Therefore, the Second Amended Complaint shall be stricken from the

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record, and Defendant’s request for the court to screen the Second Amended Complaint shall

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be denied as moot.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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The Second Amended Complaint, filed on October 3, 2013, is STRICKEN from

the record;
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Defendants’ Request for the court to screen the Second Amended Complaint,

filed on October 7, 2013, is DENIED as moot; and
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Within thirty days from the date of service of this order, Plaintiff is required to

properly file a Second Amended Complaint, pursuant to the court’s order of July 18, 2013.

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IT IS SO ORDERED.
Dated:

May 9, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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