(PC) Turner v. Sacramento City Fire Dept. et al

Filing 73

ORDER signed by Magistrate Judge Deborah Barnes on 08/01/22 STRIKING '70] plaintiff's amended complaint; DISREGARDING 71 Motion for Discovery; and DENYING 72 Motion to strike. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY DEWAYNE LEE TURNER,

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Plaintiff,

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No. 2:19-cv-0416 TLN DB P

v.

ORDER

SACRAMENTO CITY FIRE DEPT., et
al.,
Defendants.

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Plaintiff, a state prisoner, proceeds pro se with a civil rights action under 42 U.S.C. §

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1983. This case proceeds on plaintiff’s fourth amended complaint filed on October 14, 2020.

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(ECF No. 22.) Plaintiff has filed a document purporting to be a further amended complaint. (ECF

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No. 70.) Plaintiff’s motion requesting discovery is also before the court. (ECF No. 71.) Defendant

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has filed a motion to strike plaintiff’s further amended complaint. (ECF No. 72.)

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Amended Complaint (ECF No. 70)

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On July 11, 2022, plaintiff filed a document styled as an amended complaint. (ECF No.

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70.) Under Rule 15 of the Federal Rules of Civil Procedure, a party may amend its pleading once

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as a matter of course within (A) 21 days after serving it, or (B) 21 days after service of a

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responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is

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earlier. Fed. R. Civ. P. 15(a)(1). In all other cases, a party may amend its pleading only with the

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opposing party’s written consent or the court’s leave, which should freely be given when justice

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so requires. Fed. R. Civ. P. 15(a)(2).

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Here, defendant’s answer was filed on April 4, 2022. (ECF No. 62.) Plaintiff is no longer

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permitted to amend his pleading as a matter of course. Plaintiff also has not obtained defendant’s

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written consent or the court’s leave to amend. Sua sponte, the court strikes the amended

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complaint filed on July 11, 2022. This case proceeds on the fourth amended complaint filed on

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October 14, 2020. (ECF No. 22.)

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Motion for Discovery (ECF No. 71)

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On July 11, 2022, plaintiff filed a motion titled “Motion Requesting Cal. Gov’t Code §

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11507.6 Request for Discovery.” This is the second time plaintiff has filed such a motion. (See

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ECF No. 66.) As before, it is not clear whether plaintiff has served this document or any

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discovery request referenced in this document on the defendant.
As plaintiff was previously informed, discovery requests must be sent to the defendant’s

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counsel rather than to the court. Neither discovery requests served on an opposing party nor a

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party’s responses should be filed with the court until such time as a party seeks relief from the

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court under the Federal Rules of Civil Procedure. Plaintiff does not indicate he seeks any relief

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under the Federal Rules of Civil Procedure. Thus, the court will disregard this motion for

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discovery.

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Caution about Further Filings

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The record reflects plaintiff continues to file documents styled as motions which are not,

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in fact, motions. Plaintiff is again cautioned that a litigant proceeding in forma pauperis may

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suffer restricted access to the court if an excessive number of motions or improperly filed

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documents are filed in a pending action. See DeLong v. Hennessey, 912 F.2d 1144 (9th Cir.

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1990); Tripati v. Beaman, 878 F2d 351, 352 (10th Cir. 1989). The court understands that plaintiff

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lacks legal training and proceeds without counsel. Nevertheless, plaintiff shall make a good faith

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effort to restrict his court filings to those allowed under the Federal Rules of Civil Procedure.

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Order

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In accordance with the above, IT IS ORDERED:

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1. Sua sponte, the court STRIKES plaintiff’s amended complaint (ECF No. 70) as

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improperly filed.

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2. In light of the above, defendant’s motion to strike (ECF No. 72) is denied as moot.

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3. The court DISREGARDS plaintiff’s motion for discovery (ECF No. 71).

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Dated: August 1, 2022

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DLB7

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turn0416.disc

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