Smith v. Fantone et al
ORDER Denying Plaintiff's 19 Motion for Default Judgment, Granting Plaintiff Leave to Amend, and Directing Clerk to Send Plaintiff a Copy of his Second Amended Complaint and a Civil Rights Complaint Form, signed by Magistrate Judge Erica P. Grosjean on 9/14/17. Thirty Day Deadline. (Attachments: # 1 Amended Complaint)(Gonzalez, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Case No. 1:16-cv-01179 -EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR DEFAULT JUDGMENT, GRANTING
PLAINTIFF LEAVE TO AMEND, AND
DIRECTING CLERK TO SEND PLAINTIFF
A COPY OF HIS SECOND AMENDED
COMPLAINT (ECF NO. 12) AND A CIVIL
RIGHTS COMPLAINT FORM
EMMANUEL J. FANTONE and JASWANT
THIRTY DAY DEADLINE
(ECF NO. 19)
Trayvone Smith (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. ' 1983. On August 21, 2017, Plaintiff filed a
motion for default judgment. (ECF No. 19). Plaintiff asks for a default judgment in the
amount of $25,000. Default has been entered against both defendant Fantone and defendant
Kohkar. (ECF No. 21).
Plaintiff’s motion for default judgment will be denied. “A default judgment must not
differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed. R. Civ. P.
Accordingly, Plaintiff is not entitled to a $25,000 default judgment.
Here, the operative complaint (ECF No. 12) does not request any form relief.
Because Plaintiff did not request any form of relief in his complaint, the Court will give
Plaintiff thirty days to amend his complaint to add a prayer for relief. 1 Absent leave from the
Court, no other substantive changes should be made to the complaint.
Courts “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “[T]his
policy is to be applied with extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079
(9th Cir. 1990). See also Waldrip v. Hall, 548 F.3d 729, 732 (9th Cir. 2008).
The Court notes that, after it screens the Third Amended Complaint, Defendants will
need to be served with a copy of the Third Amended Complaint.
Accordingly, based on the foregoing, IT IS ORDERED that:
Plaintiff’s motion for default judgment is DENIED;
Plaintiff has thirty (30) days from the date of service of this order to file a Third
Amended Complaint. Plaintiff shall caption the amended complaint “Third
Amended Complaint” and refer to the case number 1:16-cv-01179-EPG (PC).
The amended complaint shall include a prayer for relief. No other substantive
changes shall be made to the complaint; and
The Clerk of Court is directed to send Plaintiff a copy of his Second Amended
Complaint (ECF No. 12) and a civil rights complaint form
IT IS SO ORDERED.
September 14, 2017
UNITED STATES MAGISTRATE JUDGE
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