Oliver v. Shelton et al

Filing 29

ORDER signed by Magistrate Judge Dennis M. Cota on 1/11/19 DENYING 27 Motion to Continue and STRIKING 28 Amended Complaint. (Coll, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARON MICHAEL OLIVER,

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No. 2:18-CV-1809-KJM-DMC

Plaintiff,
v.

ORDER

DUANE SHELTON, et al.,
Defendants.

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Plaintiff, who is proceeding pro se, brings this civil action. Pending before the

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court is defendant’s motion to dismiss (Doc. 22). On January 3, 2019, the court vacated the

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hearing on defendants’ motion, originally set for January 9, 2019, because plaintiff failed to file

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an opposition to the motion. See Local Rule 230(c). The motion is now submitted for a decision

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on the record without oral argument and will be addressed separately.

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On January 8, 2019, plaintiff filed a motion requesting a continuance of the

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January 9, 2019, hearing to July 4, 2019, which is a federal holiday. The request will be denied

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because, as indicated above, the court vacated the hearing on January 3, 2019, based on plaintiff’s

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non-opposition. On January 8, 2019, plaintiff also filed a first amended complaint without the

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written consent of defendants or leave of court. Because plaintiff’s first amended complaint is

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being submitted more than 21 days after defendants served their motion to dismiss, plaintiff may

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not amend as of right but may only do so upon the written consent of defendants or leave of court.
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See Fed. R. Civ. P. 15(a). Plaintiff’s first amended complaint will be stricken. This matter

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proceeds on the original complaint which is the subject of defendants’ submitted motion to

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dismiss.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for a continuance (Doc. 27) is denied; and

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2.

The first amended complaint filed on January 8, 2019 (Doc. 28) is stricken.

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Dated: January 11, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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