Coston v. Clark et al

Filing 29

ORDER GRANTING Defendant's Motion to Strike 28 , signed by Magistrate Judge Michael J. Seng on 11/16/16: Plaintiff's TAC 27 is STRICKEN. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANNY M. COSTON,

CASE NO. 1:14-cv-00148-AWI-MJS

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Plaintiff,

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ORDER
GRANTING
MOTION TO STRIKE

DEFENDANT’S

v.
(ECF NO. 28)
J.K. YU, et al.,

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 8.) The matter

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proceeds on Plaintiff’s May 14, 2015, Second Amended Complaint, which was screened

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on May 22, 2015, and found to state an Eighth Amendment medical indifference claim

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against Defendant Dr. J.K. Yu. (See ECF Nos. 16, 18.) A Discovery and Scheduling

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Order then issued, setting the discovery deadline for December 19, 2016, and the

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dispositive motion deadline for February 27, 2017. (ECF No. 23.)

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On October 19, 2016, Plaintiff lodged a Third Amended Complaint (“TAC”)

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accusing several individuals of violating his constitutional rights; he did not submit a

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motion with this amended complaint. (ECF No. 27.) Defendant now moves to strike the

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TAC. (ECF No. 28.) Plaintiff has not filed an opposition.

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Since Plaintiff previously amended his complaint, he was required to seek written

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consent of Defendant or leave of the Court prior to amending his pleading. Fed. R. Civ.

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P. 15(a); E.D. Cal. Local Rules 137(c) and 220; Sapiro v. Encompass Inc., 221 F.R.D.
513, 517 (N.D. Cal. 2004). Plaintiff did neither. Although leave to amend should be freely
given when justice so requires, a court has discretion to strike an amended pleading that
does not comply with Rule 15(a). Fed. R. Civ. P. 12(f)(1); Vasquez v. Johnson County
Housing Coalition Inc., 2003 WL 21479186 at *1 (D. Kan. 2003)).
Accordingly, it is HEREBY ORDERED that:
1. Defendant’s motion to strike (ECF No. 28) is GRANTED; and
2. Plaintiff’s TAC (ECF No. 27) is STRICKEN.

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IT IS SO ORDERED.

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Dated:

November 16, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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