O'Neal v. Johnson et al

Filing 50

ORDER signed by Magistrate Judge Dale A. Drozd on 8/28/15 DENYING 47 Motion to Amend the Complaint. The 9/18/15 hearing is dropped from the calendar. Plaintiff shall file in writing within 7 days whether he wishes to proceed on the proposed sixth amended complaint filed on 7/10/15 or the proposed sixth amended complaint filed on 7/20/15. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SEAN O’NEAL,

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Plaintiff,

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No. 2:14-cv-2374 DAD PS

v.

ORDER

AUGUST JOHNSON, et al.,

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Defendants.

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This matter came before the court on August 7, 2015, for the hearing of plaintiff’s motion

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to add defendants.1 Plaintiff’s motion was granted, plaintiff’s proposed sixth amended complaint

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filed July 20, 2015 was deemed the operative pleading and plaintiff was ordered to serve the sixth

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amended complaint on the newly named defendants. (Dkt. No. 42.)
On August 17, 2015, plaintiff filed a motion for further leave to amend and set the matter

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for hearing before the undersigned on September 18, 2015. (Dkt. No. 47.) Therein, plaintiff

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states that again “correction is necessary to correct, add claims, drop defendants, restate an

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inadequately pleaded claim, request additional relief, and alter theory of claim,” and “fix the 1983

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claim against Officer August Johnson.” (Id. at 1.) In this regard, plaintiff asserts that because

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“the Court told the plaintiff he could not sue his public defender,” that plaintiff “was under the

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The parties currently before the court have previously consented to Magistrate Judge
jurisdiction over this action pursuant to 28 U.S.C. ' 636(c)(1). (Dkt. No. 16.)
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impression that he was to drop the public defender.” (Id. at 2.) Moreover, plaintiff claims that

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“[o]n August 7, 2015 the Plaintiff talked about how it was necessary to leave (sic) to amend

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complaint ‘Docket #33’ to fix the 1983 Claim,” and that plaintiff “was told he was free to amend

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his complaint and fix complaint Docket #33.” (Id.) However, “instead Docket #36 was granted,”

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and “these two proposed amended complaint (sic) were very different.” (Id.)
Plaintiff is mistaken. As a result of the court’s order after the August 7, 2015 hearing,

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plaintiff was not free to amend his complaint further. Instead, the court granted him leave to

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amend to proceed on the proposed sixth amended complaint plaintiff filed on July 10, 2015, (Dkt.

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No. 33), and again on July 20, 2015. (Dkt. No. 36.) Plaintiff was told at the August 7, 2015

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hearing and in the August 7, 2015 order after hearing that “[n]o further amendment to the sixth

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amended complaint will be permitted in this action.” (Dkt. No. 42 at 1.)
With respect to plaintiff’s statement that the proposed sixth amended complaint plaintiff

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filed on July 10, 2015, is “very different” from the proposed sixth amended complaint plaintiff

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filed on July 20, 2015, it was plaintiff who drafted and filed these documents, identifying them as

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his “PROPOSED 6TH AMENDED COMPLAINT,” (Dkt. No. 33 at 3), and his “PROPOSED 6TH

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AMENDED COMPLAINT AMENDED.” (Dkt. No. 36 a 6.) In the future, plaintiff should avoid

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filing multiple pleadings and should instead exercise care and deliberation in his filings.

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Nonetheless, plaintiff will be provided an opportunity to elect which of his proposed sixth

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amended complaints he wishes to proceed on.

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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s August 17, 2015 motion for leave to amend (Dkt. No. 47) is denied;

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2. The September 18, 2015 hearing of plaintiff’s motion for leave to amend is dropped

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from the court’s calendar; and

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3. Within 7 days of the date of this order plaintiff shall file a writing identifying whether

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he wishes to proceed on the proposed sixth amended complaint he filed on July 10, 2015 (Dkt.

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No. 33) or the proposed sixth amended complaint he filed on July 20, 2015. (Dkt. No. 36.)

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Dated: August 28, 2015

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DAD:6
Ddad1\orders.consent\o’neal2374.lta.den.ord.docx

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