Hamilton v. Javate et al

Filing 25

ORDER GRANTING MOTION TO STAY DISCOVERY; DENYING MOTION FOR LEAVE TO ADD NEW DEFENDANT by Judge William Alsup granting 15 Motion to Stay; denying 22 Motion for Leave to File (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 1/15/2013)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 No. C 12-4279 WHA (PR) ORDER GRANTING MOTION TO STAY DISCOVERY; DENYING MOTION FOR LEAVE TO ADD NEW DEFENDANT Plaintiff, For the Northern District of California United States District Court JAMES BRIAN HAMILTON, 11 12 v. 13 14 15 DR. JAVATE; DR. HEDDEN; R.N. WALL; SRYN GRANT; DR. R. DELGADO; DR. G. THIEL; L.D. ZAMORA; J. KELSO, (Docket Nos. 15, 22) 16 17 Defendants / 18 Plaintiff, a California prisoner proceeding pro se, filed this civil rights action under 42 19 U.S.C. 1983. His claim of deliberate indifference to his medical needs was found cognizable 20 and the marshal served the defendants with the complaint. Defendants have filed a motion to 21 dismiss the case pursuant to Rule 12(b)(6) of the Federal Rules of Civil procedure, for failure to 22 state a claim upon which relief can be granted. Plaintiff’s opposition is due on or before 23 January 28, 2013, and defendants’ reply brief is due on or before February 11, 2013 24 Good cause appearing, defendants’ motion to stay discovery (dkt. 15) until resolution of 25 the motion to dismiss is GRANTED. Plaintiff has moved to “add” a new defendant, name a 26 prison official named Mrs. Singh Lun who allegedly did not give him his afternoon medication 27 on one occasion and who retaliated against him for filing grievances and court cases. The 28 motion (dkt. 22) is DENIED. Plaintiff cannot add new claims or new defendants in this manner. 1 If he wishes to change the defendants or claims in his complaint, or add to them, he must file a 2 motion for leave to amend his complaint with his proposed amended complaint attached as an 3 exhibit to the motion. 4 Plaintiff is cautioned that any amended complaint supercedes the prior complaint. This 5 means that plaintiff must include all the claims he wishes to pursue in the amended complaint, 6 including any cognizable claims from his original complaint, and the amended complaint may 7 not incorporate his original complaint, or any part of it, by reference. Plaintiff is further 8 cautioned that if he continues to pursue the claims now pending in this case, he may only add 9 new claims or new defendants that are related to such claims. To the extent he wishes to add unrelated new claims against defendants, he must do so in a new complaint filed in a new case. 11 For the Northern District of California United States District Court 10 Lastly, it is noted the new claim plaintiff wants to add does not appear to be exhausted. 12 Plaintiff is required to present his claims through all available levels of administrative review 13 before filing a claim in federal court. See 42 U.S.C. 1997e. 14 IT IS SO ORDERED. 15 Dated: January 14 , 2013. 16 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 G:\PRO-SE\WHA\CR.12\HAMILTON4279.MOT.wpd 24 25 26 27 28 2

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