Gray v. Lewis et al

Filing 20

ORDER 15 17 18 Amended Complaint due by 6/6/2014. (Illston, Susan) (Filed on 4/28/2014) (Additional attachment(s) added on 4/28/2014: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BERNARDOS GRAY, JR.,

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United States District Court
For the Northern District of California

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No. C 13-4929 SI (pr)

Plaintiff,

ORDER

v.
G. D. LEWIS; et al.,
Defendants.
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In this pro se prisoner's civil rights action, plaintiff claims that prison officials impeded

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his efforts to practice his Yahweh religion while he was housed at Pelican Bay State Prison. The

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court ordered service of process on the six defendants identified in the complaint after finding

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cognizable claims had been pled under RLUIPA, the Free Exercise Clause of the First

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Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Cruel and

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Unusual Punishments Clause of the Eighth Amendment. See Docket # 10. The matter is now

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before the court for consideration of three miscellaneous motions.

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First, plaintiff has filed a motion to amend his complaint without submitting a proposed

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amended complaint. Federal Rule of Civil Procedure 15(a) provides that leave to amend should

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be freely given when justice so requires but the court cannot make that determination without

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seeing the proposed new pleading. See Lake v. Arnold, 232 F.3d 360, 374 (3d Cir. 2000)

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("Obviously, without this draft complaint, the District Court cannot evaluate the merits of a

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plaintiff's request . . . [T]he court had nothing upon which to exercise its discretion.") The

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motion to amend cannot be granted because plaintiff did not attach the proposed amended

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complaint. Moreover, plaintiff's stated reasons for the proposed amendment are confused. He

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has stated that he wants to amend his complaint "with respect to including the equal protection

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of the 14th Amendment as to all pending claim. Thereby seeking to state that of an Eighth and

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Fourteenth Amendment violation against defendants Virga, Nielson, Starns and Gom." Docket

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# 17 at 1 (errors in source). The court already found that an equal protection claim was stated

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against the six defendants listed in the complaint, so there does not appear to be a need to amend

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the claim with regard to those defendants. The basis for the equal protection and Eighth

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Amendment claims against the four newly identified potential defendants is not clear because

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they are not mentioned in the complaint or the attachments thereto. The motion to amend is

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DENIED without prejudice because plaintiff failed to attach the proposed new pleading. Docket

United States District Court
For the Northern District of California

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# 17.

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Second, plaintiff has filed a "motion for mistake of identity" in which he seeks to replace

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the name of an incorrectly named defendant. He wants to substitute in "L. Mitchell" in place of

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the person wrongly identified as "L. Michael" at paragraphs 7, 20 and 21 of his complaint.

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Plaintiff's motion is construed to be a motion to amend to substitute defendants and is

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GRANTED. Docket # 15. L. Mitchell is now substituted in as a defendant in place of the

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person identified as L. Michael in paragraphs 7, 20 and 21 of the complaint. Service of process

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will be ordered on defendant Chaplain L. Mitchell at Pelican Bay State Prison.

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Third, defendants have moved for an extension of the deadline to file their motion for

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summary judgment or other dispositive motion. In light of plaintiff's addition of a defendant and

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apparent desire to file an amended complaint, the motion for an extension of the deadline to file

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dispositive motions is GRANTED. Docket # 18. The briefing schedule for dispositive motions

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is now vacated.

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In order to move this action toward resolution:
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If plaintiff wishes to amend his complaint, he must file another motion to

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amend and attach to it his proposed amended complaint. The motion and proposed amended

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complaint must be filed and served on defendants no later than June 6, 2014. If plaintiff does

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not file a proposed amended complaint by the deadline, the court will then set a new briefing

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schedule for dispositive motions.
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2.

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Defendant L. Mitchell is substituted into this action as a defendant in place

of the person identified as defendant L. Michael.
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The clerk shall issue a summons and the United States Marshal shall serve,

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without prepayment of fees, the summons, a copy of the complaint and a copy of all the

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documents in the case file upon Chaplain L. Mitchell at Pelican Bay State Prison. Within thirty

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days of being served with process, defendant L. Mitchell must file a notice of appearance in this

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action.

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IT IS SO ORDERED.
Dated: April 28, 2014

_______________________
SUSAN ILLSTON
United States District Judge

United States District Court
For the Northern District of California

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