Cooper v. Igbinosa, M.D. et al

Filing 9

ORDER Regarding Plaintiff's Motion 6 ; ORDER Directing Clerk of the Court to Docket Plaintiff's First Amended COmplaint, signed by Magistrate Judge Dennis L. Beck on 6/25/12. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CRAIG COOPER,

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Plaintiff,

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CASE NO. 1:12-cv-0039-LJO-DLB PC
ORDER REGARDING PLAINTIFF’S
MOTION (DOC. 6)

v.
ORDER DIRECTING CLERK OF THE
COURT TO DOCKET PLAINTIFF’S FIRST
AMENDED COMPLAINT

FELIX IGBINOSA, et al.,

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Defendants.
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Plaintiff Craig Cooper is a California state prisoner proceeding pro se in a civil rights

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action pursuant to 42 U.S.C. § 1983. On October 5, 2011, Plaintiff filed a complaint in Fresno

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County Superior Court. Doc. 1. On January 5, 2012, Defendants Felix Igbinosa and James

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Yates removed this action to this Court. Pending before the Court is Plaintiff’s motion, filed

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January 24, 2012, entitled “Application For Relief From the Removal Proceeding and Return To

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State Court.” Doc. 6. The filing is treated as a motion, and is submitted pursuant to Local Rule

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230(l).

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Plaintiff contends that he erred in filing his claim as pursuant to the Eighth Amendment

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and state tort claims, intending only to file as a state tort action. Plaintiff attaches an amended

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complaint with his motion. Plaintiff requests that the Court remand this action to state court in

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light of Plaintiff’s amended complaint. However, Plaintiff’s proposed amended complaint still

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alleges a violation of the Eighth Amendment. “Defendants Yates and Igbinosa violated plaintiff

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(sic) Calif. Const., 8th Amendment; Calif. Const., art. 1, §17 and Gov. 830 rights.” Plaintiff’s

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Proposed Amended Complaint, page 8.
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A party may amend its pleading with leave of the court, as justice so requires. Fed. R.

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Civ. P. 15(a)(2). Here, Plaintiff has not had the opportunity to amend his complaint. The Court

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finds that Plaintiff should be granted leave to file an amended complaint. The Court will screen

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the complaint prior to making any determination as to whether the action should be remanded to

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state court.

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff’s motion filed January 24, 2012 is granted in part as stated herein;

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2.

The Clerk of the Court is directed to docket Plaintiff’s first amended complaint,

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attached as pages 4 through 13 of court docket No. 6, in a separate docket entry

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and label it as Plaintiff’s First Amended Complaint.
IT IS SO ORDERED.

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Dated:
3b142a

June 25, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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