(PC) Beckett v. Moreno et al

Filing 29

ORDER Staying Deadlines for Plaintiff to Respond to Defendants' 27 Motion for Summary Judgment and 28 Motion to Stay Discovery and Scheduling Order; ORDER Requiring Plaintiff to File Motion Seeking Leave to Amend or 26 Lodged Second Amended Complaint will be Stricken signed by Magistrate Judge Barbara A. McAuliffe on 07/16/2021. Thirty-Day Deadline. (Flores, E)

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Case 1:20-cv-01427-NONE-BAM Document 29 Filed 07/19/21 Page 1 of 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW H. BECKETT, 12 Plaintiff, 13 v. 14 MORENO, et al., 15 ORDER STAYING DEADLINES FOR PLAINTIFF TO RESPOND TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND MOTION TO STAY DISCOVERY AND SCHEDULING ORDER (ECF Nos. 27, 28) Defendants. ORDER REQUIRING PLAINTIFF TO FILE MOTION SEEKING LEAVE TO AMEND OR LODGED SECOND AMENDED COMPLAINT WILL BE STRICKEN (ECF No. 26) 16 17 18 THIRTY (30) DAY DEADLINE 19 20 Case No. 1:20-cv-01427-NONE-BAM (PC) Plaintiff Matthew H. Beckett (“Plaintiff”) is a state prisoner proceeding pro se and in 21 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 22 Plaintiff’s first amended complaint against Defendants Sedillo and Moreno for excessive force in 23 violation of the Eighth Amendment for the incident on October 21, 2018, for force used after the 24 time Plaintiff lost consciousness. 25 Defendants filed an answer to the first amended complaint on March 26, 2021. (ECF No. 26 21.) On July 15, 2021, Plaintiff submitted a proposed second amended complaint, but it was not 27 accompanied by a motion seeking leave to amend. (ECF No. 26.) On July 16, 2021, Defendants 28 filed a motion for summary judgment together with a motion to stay the deadlines in the Court’s 1 Case 1:20-cv-01427-NONE-BAM Document 29 Filed 07/19/21 Page 2 of 2 1 April 29, 2021 Discovery and Scheduling Order. (ECF Nos. 27, 28.) 2 Pursuant to Federal Rule of Civil Procedure 15(a)(2), Plaintiff may only amend his 3 pleading with Defendants’ written consent or the Court’s leave. As it does not appear that 4 Plaintiff has obtained Defendants’ written consent to file a second amended complaint, Plaintiff 5 must obtain leave of Court. Although the Court will freely give leave to amend when justice so 6 requires, Plaintiff has not provided any explanation for his desire to submit a second amended 7 complaint. Plaintiff will therefore be permitted an opportunity to file a motion to amend, and 8 Defendants will have an opportunity to respond pursuant to Local Rule 230(l). 9 10 11 12 Accordingly, IT IS HEREBY ORDERED as follows: 1. Within thirty (30) days from the date of service of this order, Plaintiff shall file a motion seeking leave to file an amended complaint; 2. The deadlines for Plaintiff to respond to Defendants’ motion for summary judgment and 13 motion to stay the deadlines in the Court’s Discovery and Scheduling Order are STAYED 14 pending resolution of Plaintiff’s motion to amend; and 15 3. If Plaintiff fails to file a motion to amend in compliance with this order, Plaintiff’s 16 lodged second amended complaint will be stricken from the record and this action 17 will proceed on Plaintiff’s first amended complaint. 18 19 20 21 IT IS SO ORDERED. Dated: /s/ Barbara July 16, 2021 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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