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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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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,
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v.
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DR. JAVATE; DR. HEDDEN; R.N.
WALL; SRYN GRANT; DR. R.
DELGADO; DR. G. THIEL; L.D.
ZAMORA; J. KELSO,
(Docket Nos. 15, 22)

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Defendants
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Plaintiff, a California prisoner proceeding pro se, filed this civil rights action under 42
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U.S.C. 1983. His claim of deliberate indifference to his medical needs was found cognizable
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and the marshal served the defendants with the complaint. Defendants have filed a motion to
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dismiss the case pursuant to Rule 12(b)(6) of the Federal Rules of Civil procedure, for failure to
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state a claim upon which relief can be granted. Plaintiff’s opposition is due on or before
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January 28, 2013, and defendants’ reply brief is due on or before February 11, 2013
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Good cause appearing, defendants’ motion to stay discovery (dkt. 15) until resolution of
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the motion to dismiss is GRANTED. Plaintiff has moved to “add” a new defendant, name a
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prison official named Mrs. Singh Lun who allegedly did not give him his afternoon medication
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on one occasion and who retaliated against him for filing grievances and court cases. The
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motion (dkt. 22) is DENIED. Plaintiff cannot add new claims or new defendants in this manner.

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If he wishes to change the defendants or claims in his complaint, or add to them, he must file a

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motion for leave to amend his complaint with his proposed amended complaint attached as an

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exhibit to the motion.

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Plaintiff is cautioned that any amended complaint supercedes the prior complaint. This

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means that plaintiff must include all the claims he wishes to pursue in the amended complaint,

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including any cognizable claims from his original complaint, and the amended complaint may

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not incorporate his original complaint, or any part of it, by reference. Plaintiff is further

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cautioned that if he continues to pursue the claims now pending in this case, he may only add

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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.

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For the Northern District of California

United States District Court

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Lastly, it is noted the new claim plaintiff wants to add does not appear to be exhausted.

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Plaintiff is required to present his claims through all available levels of administrative review

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before filing a claim in federal court. See 42 U.S.C. 1997e.

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IT IS SO ORDERED.

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Dated: January

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, 2013.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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G:\PRO-SE\WHA\CR.12\HAMILTON4279.MOT.wpd

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