Barker v. Yassine

Filing 44

ORDER signed by Magistrate Judge Gregory G. Hollows on 10/18/2011 ORDERING that pltf's 42 motion to amend is DENIED and pltf must still file an opposition to the motion to dismiss as discussed in the 10/3/11 order. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM BARKER,
Plaintiff,

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No. CIV S-11-0246 LKK GGH P

Defendant.

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ORDER

vs.
R. YASSINE,

/

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Plaintiff, a state prisoner proceeding pro se, proceeds with a civil rights action.

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On July 27, 2011, defendant filed a motion to dismiss. Plaintiff had filed motions for

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reconsideration and a motion to stay, but no formal opposition. On September 28, 2011, plaintiff

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filed a motion for a 45 day extension noting that another inmate who is aiding plaintiff, requires

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the extension. Defendant did not oppose the extension, so on October 3, 2011, the court granted

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plaintiff a 45 day extension to file an opposition to the motion to dismiss and stated no further

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extensions would be allowed.

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On October 13, 2011, plaintiff filed a motion to amend and a first amended

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complaint. The substance of the first amended complaint is only two pages and repeats the same

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claim as the operative original complaint though much more succinctly. The underlying facts of

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this case are that the sole defendant used excessive force against plaintiff. Plaintiff stated that in
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the original complaint and repeats the allegations in the amended complaint.
Plaintiff has no right to amend his complaint as of right at this time as he has

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served it more than 21 days after the filing of the motion to dismiss. Fed. R. Civ. P. 15(a)(1)(B).

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Moreover, there is no need to amend the complaint to state the exact same claim. Therefore,

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plaintiff’s motion is denied, and plaintiff must still file an opposition to the motion to dismiss as

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discussed in the October 3, 2011, order. Failure to file an opposition will result in a

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recommendation that this action be dismissed.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to amend (Doc.

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42) is denied and plaintiff must still file an opposition to the motion to dismiss as discussed in

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the October 3, 2011, order.

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DATED: October 18, 2011
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH: AB
bark0246.ord4

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