Corry v. Alameda County Sheriff's Office et al

Filing 26

ORDER by Judge Edward M. Chen for Second Amended Complaint and Vacating Briefing Schedule. Second Amended Complaint due by 3/28/2014. (Attachments: # 1 Exhibit Blank Subpoena Forms, # 2 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 2/21/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN J. CORRY,

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Plaintiff,

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No. C-12-5152 EMC (pr)

v.
ALAMEDA COUNTY SHERIFF’S
OFFICE, et al.,

ORDER FOR SECOND AMENDED
COMPLAINT AND VACATING
BRIEFING SCHEDULE

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Defendants.
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This matter is now before the Court to deal with a pleading problem in this pro se prisoner’s

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civil rights action. The Court will require Mr. Corry to file a second amended complaint or suffer

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the dismissal of a defendant. The Court also will vacate the existing briefing schedule for

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dispositive motions, and send two more blank subpoenas to Mr. Corry.

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A.

The Pleading Problem

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In his complaint, Mr. Corry alleged that deputies had used excessive force on him on July 1,

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2011 at the Santa Rita Jail. The complaint did not provide names for any of the individual deputies

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who allegedly used force on him. The Court granted leave to amend, and Mr. Corry provided one

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name: Deputy Gordon. The Court then ordered service of process on Deputy Gordon, who

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eventually was served. Meanwhile, Mr. Corry wrote a letter saying he “remember[ed] another

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name,” Deputy Vallandingham. Docket # 15. Mr. Corry then moved for leave to amend and filed a

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first amended complaint in which he alleged that Deputy Vallandingham used excessive force on

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him on July 1, 2011 and did not mention Deputy Gordon. See Docket # 17 and # 18.

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The “general rule is that an amended complaint supercedes the original complaint and

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renders it without legal effect.” Lacey v. Maricopa County, 693 F.3d 896, 925 (9th Cir. 2012).

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There are exceptions to the general rule when the district court has dismissed a claim, but those

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exceptions do not apply to the present situation because Mr. Corry’s amended complaint is not the

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result of the Court having dismissed his claim against Deputy Gordon. His failure to assert any

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claim against Deputy Gordon in his amended complaint amounts to a voluntary dismissal of any

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claim against Deputy Gordon. See id. at 928 (“for any claims voluntarily dismissed, we will

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consider those claims to be waived if not repled). The Court suspects that the pro se plaintiff is

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unaware of this pleading rule. The Court thus is uncertain whether Mr. Corry wanted to dismiss his

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claim against Deputy Gordon or mistakenly thought he could proceed against different defendants in

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different pleadings.

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Mr. Corry’s motion to amend the complaint is GRANTED. (Docket # 17.) The motion is

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granted because he could amend as a matter of right under Federal Rule of Civil Procedure 15(a)

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before defendant filed a responsive pleading or motion to dismiss. The operative pleading now is

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the first amended complaint (Docket # 18) filed on October 21, 2013.

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In light of the concern that Mr. Corry may have failed to include Deputy Gordon in the first

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amended complaint by mistake, the Court now GRANTS Mr. Corry leave to file a second amended

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complaint or to file a notice that he voluntarily dismisses Deputy Gordon as a defendant. The

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second amended complaint must include all his claims against all the defendants for the July 1, 2011

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incident. As to any defendants whose names he does not know, Mr. Corry may sue them as Doe

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defendants, bearing in mind the information about Doe defendants at page 2 of the February 2, 2013

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order of dismissal with leave to amend. Failure to allege a claim against Deputy Gordon and/or

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Deputy Vallandingham in the second amended complaint will result in the dismissal of that

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defendant.

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B.

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Miscellaneous
In light of the need for Mr. Corry to address the pleading problem, Deputy Gordon’s motion

to continue the dispositive motion deadline is GRANTED. (Docket # 23.) The briefing schedule for

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dispositive motions is now vacated, and a new briefing schedule will be set after the pleading

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problem is resolved.

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Pursuant to the order of service and partial dismissal, the clerk sent two blank subpoenas.

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Mr. Corry returned a subpoena, but failed to specify on the subpoena what document he wanted

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produced. The clerk will send two more blank subpoenas to produce documents for him to use to try

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to find names for the Doe defendants. Mr. Corry is cautioned that a records subpoena is useless

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unless he describes the particular documents he wants produced in the blank space under the portion

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of the form that begins, “Production: YOU ARE COMMANDED to produce...”

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Mr. Corry must file a second amended complaint complying with the directions in this order

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no later than March 28, 2014. If he does not file a second amended complaint by that date, the

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Court will dismiss Deputy Gordon from the action.

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Mr. Corry’s “response to Deputy Matthew Gordon’s Answer To Plaintiff John J. Corry

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Complaint” (Docket # 24) is STRICKEN from the record. The complaint and answer are called the

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pleadings in a case, and their purpose is to set out the parties’ formal allegations, i.e., a plaintiff’s

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claims and a defendant’s defenses. Those are the only pleadings generally allowed. A plaintiff is

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not allowed to file a reply to the answer to the complaint unless the Court specifically permits him to

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do so. See Fed. R. Civ. P. 7(a)(7). The Court declines to permit Mr. Corry to file a reply (or, as he

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called it, a response) to the answer because it is unnecessary and unhelpful. The defenses alleged in

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the answer are deemed to be controverted by the plaintiff. See Fed. R. Civ. P. 8(b)(6). In other

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words, it is presumed as a legal matter that a plaintiff disagrees with everything defendants have

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alleged in their answer and he does not need to file another pleading to say so.

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IT IS SO ORDERED.

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Dated: February 21, 2014

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_________________________
EDWARD M. CHEN
United States District Judge

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