Marowitz v. Williams et al

Filing 4

ORDER Granting Plaintiff's 3 Motion for Extension of Time to File a First Amended Complaint, ORDER Denying 2 Motion for Summons, signed by Magistrate Judge Barbara A. McAuliffe on 10/26/17. Amended Complaint Due Within Sixty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANDREW MAROWITZ.

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Plaintiff,
v.

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SARAH WILLIAMS, et al.

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Defendants.

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Case No. 1:16-cv-1892-DAD-BAM
ORDER GRANTING PLAINTIFF’S
MOTION FOR AN EXTENSION OF TIME
TO FILE A FIRST AMENDED
COMPLAINT
(Doc. Nos. 2, 3)

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Plaintiff Andrew Marowitz (“Plaintiff”) is proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff names the County of Mariposa, the Mariposa County

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Planning Department and several individual Mariposa County employees as defendants.

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On October 12, 2017, Plaintiff filed a notice informing the Court that he intends to file a

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First Amended Complaint on or before November 1, 2017. (Doc. No. 2). Plaintiff further

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requested that the Court issue summons once his amended complaint is filed. (Doc. No. 2).

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However, on October 23, 2017, Plaintiff filed a motion for a sixty-day extension of time to file

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his First Amended Complaint and a request that the Court defer consideration of his case until

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that First Amended Complaint is filed. (Doc. No. 3). Plaintiff requests additional time to file, in

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part, so that he may arrange to properly pursue a claim against the State of California in

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compliance with California’s Tort Claims Act. (Doc. No. 3).

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Rule 15(a)(1) provides that “[a] party may amend its pleading once as a matter of course

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within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is

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required, 21 days after service of a responsive pleading or 21 days after service of a motion

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under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). Rule 15(a)(2)

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provides that “[i]n all other cases, a party may amend its pleading only with the opposing party’s
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written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Because the Defendants have not

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yet been served in this action and have therefore not served any responsive pleadings, the Court

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will grant Plaintiff’s request to file a First Amended Complaint, and Plaintiff’s original

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complaint will not be screened or served at this time.

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Plaintiff is advised that pursuant to 28 U.S.C. § 1915(e)(2), regardless of whether

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Plaintiff paid the filing fee, the Court is required to conduct an initial review of complaints

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brought by Plaintiffs proceeding without counsel. The Court must dismiss a complaint or portion

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thereof if the litigant has raised claims that are legally “frivolous or malicious,” that fail to state a

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claim upon which relief may be granted, or that seek monetary relief from a defendant(s) who is

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immune from such relief. 28 U.S.C. § 1915(e)(2). Plaintiff is advised that once filed, his First

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Amended Complaint will be screened pursuant to section 1915(e) in due course. As a result,

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until the Court has screened the amended complaint and found cognizable claims, any future

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request for the court to issue summons is premature and will be denied.

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what

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each named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal

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rights. Iqbal, 556 U.S. at 676. Plaintiff also must set forth “sufficient factual matter . . . to ‘state a

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claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555).

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Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated

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claims in his second 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 advised that an amended complaint supersedes the original complaint.

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Lacey, 693 F.3d at 927. Therefore, Plaintiff’s second amended complaint must be “complete in

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itself without reference to the prior or superseded pleading.” Local Rule 220.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an extension of time to file a First Amended Complaint is

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GRANTED. (Doc. No. 3);
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Plaintiff is granted sixty days from the date of service of this order to file a First

Amended Complaint. The amended complaint must bear the docket number assigned to this
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case and must be labeled “First Amended Complaint.” If Plaintiff fails to file a First Amended

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Complaint, the Court may recommend that this case be dismissed for failure to prosecute and/or

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for failure to comply with court orders. See Fed.R.Civ.P. 41(b); see also Local Rule 110; and

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Plaintiff’s Notice and Request to Issue Summons is DENIED. (Doc. No. 2).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 26, 2017

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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