Kent v. U.C. Davis Medical Center et al
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:15-cv-1924 WBS AC P
U.C. DAVIS MEDICAL CENTER, et al.,
Defendant filed a motion for summary judgment on February 9, 2018. ECF No. 52.
Rather than responding to the motion, plaintiff has filed a document which he appears to intend as
an amended complaint. ECF No. 54. In striking plaintiff’s previous amended complaint (ECF
No. 44), the court explained to plaintiff that
[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
ECF No. 47 at 1. Plaintiff’s subsequent motion to amend (ECF No. 49) was denied (ECF No.
51), and once again there is no evidence that defendant has agreed to the filing of another
amended complaint. Furthermore, the court is unable to discern any cognizable claims in the
amended complaint. The third amended complaint will therefore be stricken from the record. To
the extent the document was intended as a request to amend the complaint, rather than as an
amended complaint, the request is denied and plaintiff will be required to respond to the motion
for summary judgment.
Plaintiff also states that he wants to know why he did not get an extension of time. ECF
No. 54 at 1. It is unclear what plaintiff is referring to, and the court assumes he is referencing his
last request for an extension, which was received by the Clerk of the Court on November 6, 2017,
and which sought additional time for discovery. ECF No. 45. That motion was denied without
prejudice because it was unclear what deadline plaintiff needed to extend. ECF No. 47.
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is directed to strike plaintiff’s third amended complaint (ECF
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
motion for summary judgment. Failure to respond will result in a recommendation that this
action be dismissed for failure to prosecute.
DATED: April 11, 2018
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