Johnson v. Beard

Filing 156

ORDER signed by Magistrate Judge Kendall J. Newman on 7/26/21 GRANTING 154 Motion to Strike. The Clerk of the Court is directed to strike plaintiffs filing 152 . Within thirty days from the date of this order, plaintiff shall file an opposition, if any, to the motion to dismiss. (Plummer, M)

Case 2:15-cv-01313-TLN-KJN Document 156 Filed 07/26/21 Page 1 of 3
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL DAVID JOHNSON,

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Plaintiff,

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v.

No. 2:15-cv-1313 TLN KJN P

ORDER

E. NAKU, M.D., et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding pro se. On June 4, 2021, defendant Dr. Mahmoud

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filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12. Plaintiff did not oppose

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the motion. Rather, on June 30, 2021, plaintiff filed a document styled, “Third Amended

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Complaint[,] Motion for Summary Judgment, and Demand for Jury Trial, Also Requesting

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Declaration for Appointment of Counsel.” (ECF No. 152.) On July 15, 2021, defendant

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Mahmoud filed a motion to strike plaintiff’s fourth amended complaint as improperly filed. (ECF

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No. 154.) As set forth below, the undersigned grants the motion to strike, and grants plaintiff an

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extension of time to file an opposition to the motion to dismiss.

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Plaintiff’s filing is improper and fails to address defendant’s motion to dismiss. First,

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plaintiff again failed to first seek leave to file an amended complaint. (See ECF No. 114.)

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Plaintiff amended his complaint multiple times, and defendant Mahmoud’s motion to dismiss is

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pending. In order to amend his pleading again, plaintiff must file and serve a motion to amend
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Case 2:15-cv-01313-TLN-KJN Document 156 Filed 07/26/21 Page 2 of 3
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along with his proposed amended pleading. See Fed. R. Civ. P. 15(a)(2). Thus, plaintiff may

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amend again only by leave of court or by written consent of the adverse parties. See Fed. R. Civ.

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P. 15(a)(2). Plaintiff did not file a motion to amend or a stipulation to amend the complaint

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signed by all parties. Plaintiff’s fourth amended complaint is stricken, and this action will

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proceed on the third amended complaint filed October 28, 2019. (ECF No. 54.)

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In addition, plaintiff’s proposed pleading fails to address all of the defendants, focusing

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instead on defendant Dr. Mahmoud. The court cannot refer to a prior pleading in order to make

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plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This requirement exists because, as a

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general rule, an amended complaint supersedes the original complaint. See Ramirez v. County of

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San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint supersedes the

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original, the latter being treated thereafter as non-existent.’” (internal citation omitted)). Once

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plaintiff files an amended complaint, the original pleading no longer serves any function in the

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case. Therefore, in an amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged.
Second, although plaintiff includes “motion for summary judgment” and “request for

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appointment of counsel” in the title, the text of his filing fails to address either. In addition, his

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“motion” fails to comply with Rule 56 of the Federal Rules of Civil Procedure and is premature in

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light of the procedural posture of this case. At the appropriate time, the court will issue a

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discovery and scheduling order that will set deadlines for the filing of such a dispositive motion.

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Third, because plaintiff’s reference to “motion for summary judgment” and “request for

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appointment of counsel” are unsupported by facts, argument, or legal authorities, the court will

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direct the Clerk of Court to strike the entirety of plaintiff’s June 30, 2021 filing (ECF No. 152).

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Fourth, this is the second time plaintiff has filed an amended complaint without first

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seeking leave of court. (See ECF No. 114.) Plaintiff is cautioned that continued failure to

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comply with court orders may result in the imposition of sanctions, including a recommendation

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that this action be dismissed. Fed. R. Civ. P. 41(b).

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Case 2:15-cv-01313-TLN-KJN Document 156 Filed 07/26/21 Page 3 of 3
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Finally, as to the pending motion to dismiss, plaintiff is advised of the following.

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Local Rule 230(l) provides in part: “Failure of the responding party to file written

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opposition or to file a statement of no opposition may be deemed a waiver of any opposition to

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the granting of the motion . . . .” Id. Local Rule 110 provides that failure to comply with the

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Local Rules “may be grounds for imposition of any and all sanctions authorized by statute or

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Rule or within the inherent power of the Court.” Id.

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Finally, Rule 41(b) of the Federal Rules of Civil Procedure provides:

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Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or
to comply with these rules or a court order, a defendant may move
to dismiss the action or any claim against it. Unless the dismissal
order states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule--except one for lack of
jurisdiction, improper venue, or failure to join a party under Rule
19--operates as an adjudication on the merits.

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Id.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. Defendant’s motion to strike (ECF No. 154) is granted.

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2. The Clerk of the Court is directed to strike plaintiff’s filing (ECF No. 152);

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3. Within thirty days from the date of this order, plaintiff shall file an opposition, if any,

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to the motion to dismiss. Failure to file an opposition will be deemed as consent to have the:

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(a) action dismissed for lack of prosecution; and (b) action dismissed based on plaintiff’s failure

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to comply with these rules and a court order. Such failure shall result in a recommendation that

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this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

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Dated: July 26, 2021

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/john1313.nop+

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