Hoffmann v. Lassen County et al.

Filing 16

ORDER signed by Magistrate Judge Allison Claire on 12/29/2016 ORDERING that the Clerk shall STRIKE plaintiff's 15 Fourth Amended Complaint and accompanying "affidavit" from the docket. The 12 Third Amended Complaint is the operative complaint. (Zignago, K.)

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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 KASEY F. HOFFMANN, 12 Plaintiff, 13 14 No. 2:16-cv-0946 JAM AC (PS) v. ORDER LASSEN COUNTY, et al., 15 Defendants. 16 Plaintiff is proceeding in this action pro se. The action was accordingly referred to the 17 18 magistrate judge for pretrial proceedings by E.D. Cal. R. (“Local Rule”) 302(c)(21). Although it 19 appears that plaintiff is an inmate in a county jail, this lawsuit does not challenge conditions of 20 confinement. 21 On December 28, 2016, the court screened plaintiff’s Third Amended Complaint, and 22 ordered it to be served on defendants. ECF No. 13. On the same day, plaintiff filed a Fourth 23 Amended Complaint and an accompanying “Affidavit of Facts.” ECF No. 15, 15-1. It appears 24 that the court’s order and the plaintiff’s Fourth Amended Complaint crossed each other in the 25 mail. As such, the court does not consider the Fourth Amended Complaint to be plaintiff’s 26 response to the court’s screening order, which gave plaintiff thirty days to either proceed with his 27 Indian Child Welfare Act (“ICWA”) claims alone, or amend his complaint. See ECF No. 13. 28 //// 1 1 The court will order the Fourth Amended Complaint stricken from the docket for the reasons that 2 follow. 3 The Fourth Amended Complaint is identical to the Third Amended Complaint (other than 4 the date line). Plaintiff’s filing of an “affidavit” with his Fourth Amended Complaint does not 5 change the result. Although Fed. R. Civ. P. 10(c) permits a “written instrument” to be attached to 6 a complaint, plaintiff’s “affidavit” does not qualify under that Rule. Plaintiff’s “affidavit” is 7 simply an unsworn statement, and therefore is not a proper affidavit or declaration. Even if it 8 were in proper format, the “affidavit” does not “form the basis of the complaint” – it post-dates 9 the complaint, and the complaint makes no reference to it. See United States v. Ritchie, 342 F.3d 10 903, 908 (9th Cir. 2003) (“[a]ffidavits and declarations such as the Hieronymus declaration are 11 not allowed as pleading exhibits unless they form the basis of the complaint”). Accordingly, the 12 “affidavit” will be stricken. Since the court has already screened the Third Amended Complaint, 13 the court will order the Fourth Amended Complaint to be stricken from the docket, to avoid any 14 confusion about which document is the operative complaint.1 15 For the reasons set forth above, IT IS HEREBY ORDERED that: 16 1. The Clerk of the Court shall STRIKE plaintiff’s Fourth Amended Complaint and 17 accompanying “affidavit” (ECF No. 15, 15-1), from the docket; and 18 19 2. The Third Amended Complaint (ECF No. 12) is the operative complaint. DATED: December 29, 2016 20 21 22 23 24 25 26 27 28 1 In addition, while plaintiff has the right to amend “once as a matter of course” within certain time constraints, this would be plaintiff’s fourth amendment, and accordingly it can only be done with leave from the court. See Fed. R. Civ. P. 15(a) (emphasis added). 2

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