Holsey v. Knipp

Filing 19

ORDER signed by Magistrate Judge Gregory G. Hollows on 10/11/2013 ORDERING petitioner to file a second amended petition that is complete in and of itself within 30 days; respondent must file an answer or dispositive motion within 30 days thereafter. (See Order for Details) (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEROY DALE HOLSEY,

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No. 2:13-cv-0962 KJM GGH P

Petitioner,
v.

ORDER

WILLIAM KNIPP,
Respondent.

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A joint scheduling statement in this matter was filed on August 8, 2013, pursuant to the

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court’s order filed July 15, 2013. Subsequently, petitioner filed an amended petition which seeks

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to supplement the “existing petition” and incorporates by reference all the claims and arguments

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presented in the “existing petition.”

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A review of the original petition and the supplemental or amended petition indicates that

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new claims have been added to the supplemental petition that were not raised in the initial

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petition. The court cannot refer to a prior pleading in order to make plaintiff’s amended

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complaint complete. Local Rule 220 requires that an amended petition be complete in itself

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without reference to any prior pleading. This is because, as a general rule, an amended petition

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supersedes the original petition. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th

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Cir.1997), overruled in part on other grounds, Lacey v. Maricopa County, 693 F.3d 896, 928 (9th

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Cir. 2012) (en banc). Once plaintiff files an amended petition, the original pleading no longer
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serves an operative function in the case. While at times it is possible to deem an original petition

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and an amended petition consolidated into one petition, when claims in each are clearly

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delineated, such is not possible here. The claims stated in the original petition are conclusory,

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vague and scattered. The court is unwilling to proceed with the potential of a later argument that

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the court “forgot” to rule on a claim set forth in the original petition. Therefore, after reviewing

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the joint statement and the petitions of record, the court issues the following ORDER:

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1. Petitioner shall file a second amended petition that is complete in and of itself without
incorporating by reference the original petition, within 30 days of this order;
2. Respondent must file an answer or dispositive motion within 30 days thereafter;

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petitioner must file any reply or opposition, as appropriate, within 21 days of service of

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respondent’s responsive pleading; if respondent files a motion, respondent will have 14 days after

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service of an opposition to file a reply.

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3. If petitioner intends to make a motion for leave to conduct discovery under the Rules

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Governing Section 2254 Cases, Rule 6(a), petitioner must do so within 60 days; if respondent

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opposes any such motion respondent must do so within 30 days thereafter; petitioner’s reply, if

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any, must be filed within 14 days of any opposition by respondent.

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4. If petitioner chooses to move for an evidentiary hearing, petitioner must do so at the

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earliest appropriate opportunity; should petitioner file a motion for an evidentiary hearing, as

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respondent anticipates opposing any such motion, respondent must file any opposition within 30

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days of service of the motion, and petitioner must file any reply within 14 days of service of any

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opposition.

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Dated: October 11, 2013

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Hols0962.psta2

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