Hernandez v. Ballam, et al.

Filing 11

ORDER GRANTING Plaintiff's Motion to Re-File Original Amendment 10 , signed by Magistrate Judge Barbara A. McAuliffe on 9/1/17: Plaintiff's first amended complaint will be screened in due course. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY CAESAR HERNANDEZ,

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Plaintiff,
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vs.
BALLAM, et. al.,
Defendants.

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Case No.: 1:17-cv-00468-BAM (PC)
ORDER GRANTING PLAINTIFF’S
MOTION TO RE-FILE ORIGINAL
AMENDMENT
(ECF No. 10)

Plaintiff Antony Caesar Hernandez is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the

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jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 8.)

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Currently before the Court is Plaintiff’s motion entitled, “Request to Refile Original

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Amendment,” filed on August 30, 2017. (ECF No. 10.) In the motion, Plaintiff states that he

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wishes to refile his original complaint due to his obtaining additional information, pursuant to

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Federal Rule of Civil Procedure 15. The Court construes Plaintiff’s motion as a motion for leave

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to amend his complaint.

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Rule 15(a)(1) provides as follows:

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A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier.

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Further, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir.1967).

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In this case, Plaintiff filed his proposed amended complaint before service of process or a

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responsive pleading was filed, and before his original complaint was screened. Thus, Plaintiff

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may amend his complaint as a matter of course.

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Accordingly, Plaintiff’s motion to amend his complaint, filed on August 30, 2017 (ECF
No. 10), is GRANTED. Plaintiff’s first amended complaint will be screened in due course.

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IT IS SO ORDERED.
Dated:

September 1, 2017

/s/ Barbara

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE