Bettencourt v. Parks et al

Filing 28

ORDER Denying 23 Motion for Court and Clerk to Respond by Letter; ORDER Denying 24 Motion Concerning a Settlement and Garnishments Wages; Motion for Summary Judgment; ORDER Disregarding Plaintiff's 25 Objections to Screening Order as Mo ot; ORDER Granting in Part and Denying in Part 26 Motion to Amend the Complaint and Motion to the Court Requesting Service of Summons; ORDER Denying 27 Request for Status of Case, signed by Magistrate Judge Barbara A. McAuliffe on 8/4/17. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARY RAY BETTENCOURT,

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Plaintiff,
v.
L. PARKER, et al.,
Defendants.

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Case No. 1:16-cv-00150-DAD-BAM (PC)
ORDER DENYING MOTION FOR COURT
AND CLERK TO RESPOND BY LETTER
(ECF No. 23)
ORDER DENYING MOTION CONCERNING
A SETTLEMENT AND GARNISHMENTS
WAGES; MOTION FOR SUMMARY
JUDGMENT
(ECF No. 24)
ORDER DISREGARDING PLAINTIFF’S
OBJECTIONS TO SCREENING ORDER AS
MOOT
(ECF No. 25)

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ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO AMEND
COMPLAINT AND MOTION TO THE
COURT REQUESTING SERVICE OF
SUMMONS
(ECF No. 26)

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ORDER DENYING REQUEST FOR STATUS
OF CASE
(ECF No. 27)

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THIRTY (30) DAY DEADLINE

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Plaintiff Gary Ray Bettencourt (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on

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February 2, 2016. (ECF No. 1.)
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On December 1, 2016, the Court issued a screening order dismissing Plaintiff’s complaint

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for failure to state a claim, and granting leave to file a first amended complaint within thirty days.

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(ECF No. 22.) Thereafter, Plaintiff filed the following documents: motion for the Court and

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Clerk to respond by letter (ECF No. 23); motion for summary judgment (ECF No. 24); objections

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to screening order (ECF No. 25); motion to amend complaint (ECF No. 26); request for status of

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case (ECF No. 27). The Court will address these filings below.

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I.

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Request for Court and Clerk to Respond by Letter and Request for Status of
Case

On January 3, 2017, Plaintiff filed a “Motion Request to the Court and Federal Court

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Clerk to Respond by Letter.” (ECF No. 23.) Plaintiff appears to request a written response

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detailing whether his various “petitions and motion pleadings” were received by the Clerk,

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including five different motions. Plaintiff also filed a request for status of case on June 19, 2017,

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inquiring whether the Court had received eight listed motions. (ECF No. 27.)

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Plaintiff is directed to the Court’s February 3, 2016, First Informational Order in

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Prisoner/Civil Detainee Civil Rights Case. (ECF No. 3-1.) Plaintiff is reminded that letters to the

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Court or a judge, not styled as a motion, may be stricken or returned. (Id. at 2.) In addition, if

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Plaintiff seeks confirmation of receipt of a document, Plaintiff may submit an additional copy of

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the document, along with a pre-addressed, pre-paid postage envelope, and the Clerk of the court

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will return a file-stamped copy of the document to Plaintiff. (Id. at 3.)

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Accordingly, Plaintiff’s requests for the Court to respond by letter and for the status of his
case are denied.

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II.

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Plaintiff’s motion for summary judgment is premature. On December 1, 2016, the Court

Motion for Summary Judgment

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screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A, and dismissed it with leave to

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amend within thirty days. (ECF No. 22.) Currently, there is no operative complaint on file, no

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claims have been found cognizable, no defendants have been ordered served, and no defendants

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have appeared in this action. Therefore, Plaintiff’s motion for summary judgment is denied as

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premature.
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To the extent Plaintiff requests other relief in the form a settlement, punitive damages, and
garnishment of wages, the requested relief is also denied as premature.

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III.

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Plaintiff requests leave to file an amended complaint. As noted above, no defendants have

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been ordered served and no defendants have appeared in this action. Therefore, the Court finds it

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appropriate to grant Plaintiff’s request to file an amended complaint curing the deficiencies

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identified by the Court’s December 1, 2016 screening order. Lopez v. Smith, 203 F.3d 1122,

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1131 (9th Cir. 2000).

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Motion to Amend Complaint and Objections to Screening Order

Plaintiff is reminded that he must state what each of the Defendants did that led to the

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deprivation of Plaintiff’s constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).

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Although accepted as true, the “[f]actual allegations must be [sufficient to raise a right of relief

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above the speculative level. . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

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(citations omitted). Plaintiff also may not change the nature of this suit by adding new, unrelated

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claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no

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“buckshot” complaints).

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Finally, Plaintiff is reminded that, as a general rule, an amended complaint supersedes the

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original complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc).

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Therefore, Plaintiff’s amended complaint must be “complete in itself without reference to the

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prior or superseded pleading.” Local Rule 220.

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To the extent Plaintiff requests the Court to order service of summons on defendants, that

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motion is denied as premature. There is no operative complaint on file, and no claims have been

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found cognizable. Once the amended complaint is filed, screened, and found to have stated a

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cognizable claim against any defendant, a copy of the complaint will be sent to Plaintiff with

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service documents.
As Plaintiff’s motion to amend the complaint has been granted, Plaintiff’s objections to

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the Court’s December 1, 2016 screening order are disregarded as moot.

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IV.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s motion for the Court and Clerk to respond by letter (ECF No. 23) is

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DENIED;
2. Plaintiff’s motion concerning a settlement and garnishments wages and motion for

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summary judgment (ECF No. 24) is DENIED as premature;
3. Plaintiff’s objections to the Court’s screening order (ECF No. 25) are

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Conclusion and Order

DISREGARDED as moot;
4. Plaintiff’s motion requesting status of case (ECF No. 27) is DENIED;
5. Plaintiff’s motion to amend the complaint and motion to the Court requesting service

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of summons on defendants (ECF No. 26) is GRANTED IN PART and DENIED IN

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PART;

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6. The Clerk’s Office shall send to Plaintiff a civil rights complaint form;

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7. Within thirty (30) days from the date of service of this order, Plaintiff must file an

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amended complaint curing the deficiencies the Court has identified in the December 1,

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2016 screening order; and

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8. If Plaintiff fails to comply with this order, this action will be dismissed for failure

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to obey a court order, failure to prosecute, and failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 4, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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