Trujillo v. Munoz

Filing 13

ORDER Denying 12 Motion for the Presentation of Exhibits signed by Magistrate Judge Gary S. Austin on 03/02/2015. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 1:14-cv-01215-GSA-PC GUILLERMO CRUZ TRUJILLO, 12 Plaintiff, 13 vs. 14 ORDER DENYING MOTION FOR THE PRESENTATION OF EXHIBITS (Doc. 12.) C/O MUNOZ, 15 Defendant. 16 17 18 19 I. BACKGROUND 20 Guillermo Cruz Trujillo (APlaintiff@) is a state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint 22 commencing this action on August 4, 2014. (Doc. 1.) On August 22, 2014, Plaintiff consented 23 to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc. 5.) On January 14, 24 2015, the court issued an order dismissing the Complaint for failure to state a claim, with leave 25 to amend. (Doc. 10.) On January 28, 2015, Plaintiff filed the First Amended Complaint, which 26 awaits the court’s requisite screening. (Doc. 11.) 27 28 On February 26, 2015, Plaintiff filed a motion titled “Motion For the Presentation of Exhibits.” (Doc. 12.) 1 1 II. LOCAL RULE 220 AND FEDERAL RULE OF CIVIL PROCEDURE 15(a) AMENDING THE COMPLAINT 2 Local Rule 220 provides, in part: 3 6 Unless prior approval to the contrary is obtained from the Court, every pleading to which an amendment or supplement is permitted as a matter of right or has been allowed by court order shall be retyped and filed so that it is complete in itself without reference to the prior or superseded pleading. No pleading shall be deemed amended or supplemented until this Rule has been complied with. All changed pleadings shall contain copies of all exhibits referred to in the changed pleading. 7 Plaintiff seeks to submit evidence of exhaustion of remedies, in support of the First 8 Amended Complaint. Plaintiff may not add supporting exhibits in this manner. Under Rule 9 220, Plaintiff may not amend the First Amended Complaint by adding exhibits after the First 10 Amended Complaint has been filed. To add information or make a correction to the First 11 Amended Complaint, Plaintiff must file Second Amended Complaint which is complete in 12 itself. 4 5 13 Under Rule 15(a) of the Federal Rule of Civil Procedure, a party may amend the party=s 14 pleading once as a matter of course at any time before a responsive pleading is served. 15 Otherwise, a party may amend only by leave of the court or by written consent of the adverse 16 party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). Here, 17 because Plaintiff has already amended the complaint once, Plaintiff requires leave of court to 18 file a Second Amended Complaint. 19 Plaintiff is advised that he is not required, at this stage of the proceedings, to provide 20 evidence that he exhausted his administrative remedies. While Plaintiff is required to exhaust 21 his available administrative remedies before filing suit, McKinney v. Carey, 311 F.3d 1198, 22 1199 (9th Cir. 2002), the provision of the Prison Litigation Reform Act requiring exhaustion 23 does not impose a pleading requirement, but rather creates a defense, and Defendant has the 24 burden of raising and proving the absence of exhaustion. 42 U.S.C. § 1997(e(a); Jones v. Bock, 25 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007). In the First Amended Complaint, Plaintiff 26 provides evidence that he filed a prison grievance against defendant Munoz. (Doc. 11.) This is 27 sufficient at this stage of the proceedings. If this action reaches a juncture at which the 28 submission of evidence to prove exhaustion is appropriate and necessary (e.g., motion to 2 1 dismiss, summary judgment, or trial), Plaintiff will have the opportunity at that time to submit 2 his evidence. 3 Should Plaintiff wish to file a Second Amended Complaint, he should file a “Motion 4 For Leave to Amend” and submit a proposed Second Amended Complaint, including all of the 5 allegations, claims, and exhibits he seeks to include. 6 III. 7 8 CONCLUSION Based on the foregoing, it is HEREBY ORDERED that Plaintiff=s “Motion For the Presentation of Exhibits,” filed on February 26, 2015, is DENIED. 9 10 11 12 IT IS SO ORDERED. Dated: March 2, 2015 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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