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)

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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 KJN PS (TEMP)

v.

ORDER

AUGUST JOHNSON, et al.,

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Defendants.

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This matter came before the previously assigned Magistrate Judge on August 7, 2015, for

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the hearing of plaintiff’s motion to add defendants.1 On August 10, 2015, plaintiff was granted

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leave to amend, the proposed sixth amended complaint filed July 20, 2015 (Dkt. No. 36) was

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deemed the operative pleading, and plaintiff was ordered to serve the sixth amended complaint on

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the newly named defendants. (Dkt. No. 42.)
On August 17, 2015, plaintiff filed a motion for further leave to amend in which he argued

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that “[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,” however, “instead Docket #36 was granted,” and

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“these two proposed amended complaint (sic) were very different.” (Dkt. No. 47 at 2.)

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On November 6, 2015, this action was reassigned from the previously assigned Magistrate
Judge to the undersigned. (Dkt. No. 61.)
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On August 28, 2015, the previously assigned Magistrate Judge issued an order denying

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plaintiff’s motion for further leave to amend and ordering plaintiff to inform the court as to

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whether he wished to proceed on the proposed sixth amended complaint he filed on July 10, 2015

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

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On September 3, 2015, plaintiff filed a response stating that he “has decided to go with the

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proposed sixth amended complaint filed on July 10, 2015 (Dkt. No. 33).” (Dkt. No. 51.)

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The proposed sixth amended complaint filed on July 10, 2015 will, therefore, be deemed

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the operative pleading in this action. For purposes of clarity, that document will be deemed the

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eighth amended complaint. Moreover, because several defendants have moved to dismiss the

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proposed sixth amended complaint filed July 20, 2015, those motions to dismiss will be denied

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without prejudice to renewal.

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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

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eighth amended complaint within twenty-one (21) days of the date of this order.

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Dated: December 2, 2015

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o’neal2374.mtd.ord.docx

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