Kent v. U.C. Davis Medical Center et al

Filing 56

ORDER signed by Magistrate Judge Allison Claire on 4/11/2018 ORDERING Clerk of Court to strike 54 Third Amended Complaint. Plaintiff to respond to 52 Motion for Summary Judgment within 21 days of service of this order. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONALD KENT, 12 13 14 15 No. 2:15-cv-1924 WBS AC P Plaintiff, v. ORDER U.C. DAVIS MEDICAL CENTER, et al., Defendants. 16 17 Defendant filed a motion for summary judgment on February 9, 2018. ECF No. 52. 18 Rather than responding to the motion, plaintiff has filed a document which he appears to intend as 19 an amended complaint. ECF No. 54. In striking plaintiff’s previous amended complaint (ECF 20 No. 44), the court explained to plaintiff that 21 22 23 24 25 26 27 28 [a] party may amend a complaint once as a matter of course within twenty-one days of serving it or within twenty-one days of service of a responsive pleading. Fed. R. Civ. P. 15(a)(1). For any other amendments, plaintiff must have the written consent of defendant or leave of the court. Fed. R. Civ. P. 15(a)(2). Plaintiff has already amended the complaint twice, and even if he were proceeding on the original complaint he would be well outside the time for amending as a matter of course. Accordingly, he may only amend the complaint if he has the written permission of defendant or leave of the court. Plaintiff has not moved for leave to amend and there is no evidence that defendant has agreed to the filing of another amended complaint. ECF No. 47 at 1. Plaintiff’s subsequent motion to amend (ECF No. 49) was denied (ECF No. 1 1 51), and once again there is no evidence that defendant has agreed to the filing of another 2 amended complaint. Furthermore, the court is unable to discern any cognizable claims in the 3 amended complaint. The third amended complaint will therefore be stricken from the record. To 4 the extent the document was intended as a request to amend the complaint, rather than as an 5 amended complaint, the request is denied and plaintiff will be required to respond to the motion 6 for summary judgment. 7 Plaintiff also states that he wants to know why he did not get an extension of time. ECF 8 No. 54 at 1. It is unclear what plaintiff is referring to, and the court assumes he is referencing his 9 last request for an extension, which was received by the Clerk of the Court on November 6, 2017, 10 and which sought additional time for discovery. ECF No. 45. That motion was denied without 11 prejudice because it was unclear what deadline plaintiff needed to extend. ECF No. 47. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The Clerk of the Court is directed to strike plaintiff’s third amended complaint (ECF 14 15 No. 54) from the record. To the extent the document is a request to amend, it is denied. 2. Within twenty-one days of service of this order, plaintiff shall respond to defendant’s 16 motion for summary judgment. Failure to respond will result in a recommendation that this 17 action be dismissed for failure to prosecute. 18 DATED: April 11, 2018 19 20 21 22 23 24 25 26 27 28 2

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