O'Neal v. Johnson et al
Filing
65
ORDER signed by Magistrate Judge Kendall J. Newman on 12/2/15 ORDERING that the proposed sixth amended complaint filed on 7/10/15 33 is deemed to be the eighth amended complaint and the operative pleading in this action; Defendants' 9/8/15 mo tion to dismiss 52 and 11/30/15 motion to dismiss 64 are denied without prejudice to renewal; and All defendants appearing in this action shall file a responsive pleading to the eighth amended complaint within twenty-one (21) days of the date of this order. (Becknal, R)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
SEAN O’NEAL,
12
Plaintiff,
13
14
No. 2:14-cv-2374 KJN PS (TEMP)
v.
ORDER
AUGUST JOHNSON, et al.,
15
Defendants.
16
This matter came before the previously assigned Magistrate Judge on August 7, 2015, for
17
18
the hearing of plaintiff’s motion to add defendants.1 On August 10, 2015, plaintiff was granted
19
leave to amend, the proposed sixth amended complaint filed July 20, 2015 (Dkt. No. 36) was
20
deemed the operative pleading, and plaintiff was ordered to serve the sixth amended complaint on
21
the newly named defendants. (Dkt. No. 42.)
On August 17, 2015, plaintiff filed a motion for further leave to amend in which he argued
22
23
that “[o]n August 7, 2015 the Plaintiff talked about how it was necessary to leave (sic) to amend
24
complaint ‘Docket #33’ to fix the 1983 Claim,” and that plaintiff “was told he was free to amend
25
his complaint and fix complaint Docket #33,” however, “instead Docket #36 was granted,” and
26
“these two proposed amended complaint (sic) were very different.” (Dkt. No. 47 at 2.)
27
28
1
On November 6, 2015, this action was reassigned from the previously assigned Magistrate
Judge to the undersigned. (Dkt. No. 61.)
1
1
On August 28, 2015, the previously assigned Magistrate Judge issued an order denying
2
plaintiff’s motion for further leave to amend and ordering plaintiff to inform the court as to
3
whether he wished to proceed on the proposed sixth amended complaint he filed on July 10, 2015
4
(Dkt. No. 33), or the proposed sixth amended complaint he filed on July 20, 2015 (Dkt. No. 36).
5
On September 3, 2015, plaintiff filed a response stating that he “has decided to go with the
6
proposed sixth amended complaint filed on July 10, 2015 (Dkt. No. 33).” (Dkt. No. 51.)
7
The proposed sixth amended complaint filed on July 10, 2015 will, therefore, be deemed
8
the operative pleading in this action. For purposes of clarity, that document will be deemed the
9
eighth amended complaint. Moreover, because several defendants have moved to dismiss the
10
proposed sixth amended complaint filed July 20, 2015, those motions to dismiss will be denied
11
without prejudice to renewal.
12
13
14
15
16
17
Accordingly, IT IS ORDERED that:
1. The proposed sixth amended complaint filed on July 10, 2015 (Dkt. No. 33) is
deemed to be the eighth amended complaint and the operative pleading in this action;
2. Defendants’ September 8, 2015 motion to dismiss (Dkt. No. 52) and November
30, 2015 motion to dismiss (Dkt. No. 64) are denied without prejudice to renewal; and
3. All defendants appearing in this action shall file a responsive pleading to the
18
eighth amended complaint within twenty-one (21) days of the date of this order.
19
Dated: December 2, 2015
20
21
22
23
24
25
26
27
o’neal2374.mtd.ord.docx
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?