Gabarrete v. Hazel et al

Filing 35

ORDER Denying Plaintiff's Response Supplementing Operative Pleading (ECF No. 34 ), signed by Magistrate Judge Michael J. Seng on 8/29/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CARLOS D. GABARRETE,

CASE No. 1:11-cv-00324-MJS (PC)

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ORDER DENYING PLAINTIFF’S
RESPONSE SUPPLEMENTING
OPERATIVE PLEADING

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Plaintiff,
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v.

(ECF No. 34)

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C.B. HAZEL, et al.,
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Defendants.
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Plaintiff Carlos D. Gabarrete, a state prisoner proceeding pro se and in forma

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pauperis filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff has

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consented to Magistrate Judge jurisdiction. (ECF No. 8.)

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On July 16, 2012, Plaintiff filed his Fourth Amended Complaint. (ECF No. 25.) On

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July 31, 2012, the Court issued its order screening the Fourth Amended Complaint, finding

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cognizable Eighth Amendment claims against Defendants Hazel, Medina, Prudhel,

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Navarro, Esquivel, G. Hernandez and F. Hernandez for excessive force, failure to protect,

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and medical indifference, and ordering Plaintiff to either file an amended complaint or notify
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the Court of his willingness to proceed on the cognizable claims. (ECF No. 27.)

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On August 6, 2012, Plaintiff filed a Fifth Amended Complaint. (ECF No. 31.)

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On August 9, 2012, Plaintiff filed a response to the Court’s Order to Amend or

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Notify. It reflects his willingness to proceed on the previously identified cognizable claims

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but also asks the Court to screen the Fifth Amended Complaint. (ECF No. 32.)

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On August 21, 2012, the Court issued its order requiring Plaintiff to clarify, by not

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later than September 10, 2012, whether he wishes to proceed upon the previously

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identified cognizable Eighth Amendment claims against Defendants Hazel, Medina,

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Prudhel, Navarro, Esquivel, G. Hernandez and F. Hernandez for excessive force, failure

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to protect, and medical indifference, or upon the as yet unscreened Fifth Amended

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Complaint. (ECF No. 33.)

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On August 27, 2012, Plaintiff filed a purported response to the Court’s order dated

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July 30, 2012, supplementing either the Fourth Amended Complaint or the Fifth Amended

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Complaint (ECF No. 34), whichever is deemed operative. The proposed supplement is

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now before the Court.

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Plaintiff’s proposed supplementation is denied. Amended pleadings must be

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complete within themselves without reference to another pleading. Partial amendments are

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not permissible. Local Rule 220. A plaintiff may not supplement as to events occurring prior

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to the date of the pleading to be supplemented. Fed. R. Civ. P. 15(d). Here Plaintiff seeks

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to impermissibly file a partial amendment supplementing the operative pleading.

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Plaintiff is reminded that, by not later than September 10, 2012, he must notify the

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Court in writing whether he wishes to proceed upon the Fourth Amended Complaint’s

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previously identified cognizable Eighth Amendment claims against Defendants Hazel,

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Medina, Prudhel, Navarro, Esquivel, G. Hernandez and F. Hernandez for excessive force,

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failure to protect, and medical indifference, or upon the as-yet-unscreened Fifth Amended

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Complaint. Failure to comply by the September 10th deadline may result in dismissal of

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this action for failure to obey a Court order.

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Accordingly, for the foregoing reasons, it is hereby ordered that Plaintiff’s response
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supplementing the operative pleading (ECF No. 34) is DENIED.

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IT IS SO ORDERED.

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Dated:
ci4d6

August 29, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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