Smith v. Fantone et al

Filing 22

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)

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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 TRAYVONE SMITH, 7 Plaintiff, 8 9 10 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 v. EMMANUEL J. FANTONE and JASWANT KHOKHAR, Defendants. 11 THIRTY DAY DEADLINE 12 (ECF NO. 19) 13 14 Trayvone Smith (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis 15 in this civil rights action pursuant to 42 U.S.C. ' 1983. On August 21, 2017, Plaintiff filed a 16 motion for default judgment. (ECF No. 19). Plaintiff asks for a default judgment in the 17 amount of $25,000. Default has been entered against both defendant Fantone and defendant 18 Kohkar. (ECF No. 21). 19 Plaintiff’s motion for default judgment will be denied. “A default judgment must not 20 differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed. R. Civ. P. 21 54(c). 22 Accordingly, Plaintiff is not entitled to a $25,000 default judgment. Here, the operative complaint (ECF No. 12) does not request any form relief. 23 Because Plaintiff did not request any form of relief in his complaint, the Court will give 24 Plaintiff thirty days to amend his complaint to add a prayer for relief. 1 Absent leave from the 25 Court, no other substantive changes should be made to the complaint. 26 27 28 1 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). 1 1 2 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. 3 Accordingly, based on the foregoing, IT IS ORDERED that: 4 1. Plaintiff’s motion for default judgment is DENIED; 5 2. Plaintiff has thirty (30) days from the date of service of this order to file a Third 6 Amended Complaint. Plaintiff shall caption the amended complaint “Third 7 Amended Complaint” and refer to the case number 1:16-cv-01179-EPG (PC). 8 The amended complaint shall include a prayer for relief. No other substantive 9 changes shall be made to the complaint; and 10 3. 11 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 12 13 14 IT IS SO ORDERED. Dated: September 14, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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