Jones v. Betti et al

Filing 122

ORDER signed by Magistrate Judge Edmund F. Brennan on 04/20/11 denying 110 Motion to Compel. The amended complaint filed 03/02/11 and appearing at docket 116 be stricken. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MALIK JONES,
Plaintiff,

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vs.

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No. CIV S-08-0096 KJM EFB P

T. FELKER, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Currently before the court is plaintiff’s November 22, 2010 motion to compel.

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Dckt. No. 110. Plaintiff has also filed, without leave of court, an amended complaint. Dckt. No.

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116.

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I. Motion to Compel

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In this two-paragraph motion, plaintiff states that he sent discovery requests to

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defendants1 on September 23, 2010 and received no response. Defendants oppose the motion,

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and defense counsel declares that defendants received no discovery requests from plaintiff after

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Following the court’s ruling on defendants’ motions to dismiss, issued after the briefing
on the instant motion to compel, the only defendant now remaining in the case is defendant
Lebeck.
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the start of discovery on September 13, 2010. Dckt. No. 111-1 at ¶ 2. Plaintiff had previously

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served discovery requests on defendants in June 2009, which defendants responded to. Dckt.

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No. 111-1, Exs. A, B.

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As plaintiff has included no evidence or argument in support of his motion to compel, it

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must be denied. The court cannot find that defendants failed to properly respond to discovery

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requests that plaintiff has not shown were actually served on defendants and that defendant aver

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were never received.

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II. Amended Complaint

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Without explanation or motion for leave to amend, plaintiff has filed an amended

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complaint on March 2, 2011. Dckt. No. 116. On February 1, 2011, it was recommended that the

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motions to dismiss filed by defendants Betti, Brautingham, Callison, Hunter, Cunningham, and

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Felker be granted and that plaintiff’s claims against those defendants be dismissed. Dckt. No.

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114. That recommendation was adopted on March 29, 2011. Dckt. No. 120. Plaintiff’s

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amended complaint, however, continues to attempt to make claims against those defendants.

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Under Federal Rule of Civil Procedure 15, because more than 21 days have elapsed since

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the service of a pleading responsive to plaintiff’s currently operative complaint (filed March 29,

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2010, Docket No. 82), plaintiff must seek leave of court or the written consent of defendants to

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file an amended complaint. Fed. R. Civ. P. 15(a)(2). Plaintiff has done neither. Accordingly,

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the amended complaint filed March 2, 2011 must be stricken.

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III. Order

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s November 22, 2010 motion to compel is denied.

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2. The amended complaint filed March 2, 2011 and appearing at Docket No. 116 be

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stricken.

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Dated: April 20, 2011.

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