Riley v. Tallerico et al

Filing 39

ORDER DENYING Plaintiff's Ex Parte 38 Motion to Relate Back, signed by Magistrate Judge Erica P. Grosjean on 10/3/17. (Martin-Gill, S)

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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 7 8 9 10 Case No. 1:16-cv-01189-EPG (PC) SHANNON RILEY, ORDER DENYING PLAINTIFF’S EX PARTE MOTION TO RELATE BACK Plaintiff, v. (ECF NO. 38) TALLERICO, et al., Defendants. 11 12 13 Shannon Riley (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis 14 in this civil rights action filed pursuant to 42 U.S.C. § 1983. On September 29, 2017, Plaintiff 15 filed an “Ex Parte Motion to Relate Back, Fed. R. Civ. P. 15([c])(1)(C), ([a])(2)[]” (“the 16 Motion”). While Plaintiff titled the Motion “Motion to Relate Back,” Plaintiff asks that he be 17 allowed to amend his complaint, and that he be given a thirty day extension to do so. 18 Plaintiff’s motion will be denied. If Plaintiff wants to file an amended complaint, he 19 may file a motion for leave to file an amended complaint, along with a copy of the proposed 20 Fourth Amended Complaint. The motion should explain why Plaintiff needs to amend his 21 complaint, and the proposed changes. Plaintiff does not need leave of the Court to file the 22 motion, and he does not need to ask for an extension of time. 23 However, the Court notes that it would not be inclined to grant Plaintiff’s motion for 24 leave to amend. In screening Plaintiff’s Third Amended Complaint, the Court stated: “The 25 Court will not provide further leave to amend the complaint. This is Plaintiff’s Third Amended 26 Complaint. The Court provided significant legal standards and guidance in its screening order 27 dated January 25, 2017. (ECF No. 20). Given the multiple amendments and the legal guidance 28 that was provided, the Court finds that further amendment would be futile.” (ECF No. 24, p. 1 1 10). 2 Moreover, the Motion lists ten defendants Plaintiff wishes to add to his complaint, 3 including several doctors, an associate warden, and the warden. It appears that all ten of these 4 defendants were listed in Plaintiff’s Second Amended Complaint, which was dismissed because 5 it did not “include ‘a short and plain statement of the claim showing that the pleader is entitled 6 to relief,’ and because it include[d] claims against multiple defendants that [did] not ‘aris[e] out 7 of the same transaction, occurrence, or series of transactions or occurrences’ or involve ‘any 8 question of law or fact common to all defendants.’” (ECF No. 20, p. 8). Based on the 9 representations in the Motion, it appears that Plaintiff may be attempting to add claims and 10 11 12 defendants that are not related to the claims and defendants in the current complaint.1 Accordingly, based on the foregoing, IT IS ORDERED that the Motion is DENIED without prejudice. 13 14 15 IT IS SO ORDERED. Dated: October 3, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 1 If Plaintiff chooses to file a motion for leave to amend, Plaintiff should refer to the standards the Court provided in the screening order entered on January 25, 2017 (ECF No. 20), and the screening order entered on April 24, 2017 (ECF No. 24). 2

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