Filing 29

ORDER GRANTING LEAVE TO AMEND; RESOLVING PENDING MOTIONS. Signed by Magistrate Judge Jacqueline Scott Corley on 10/23/2017.(ahm, COURT STAFF) (Filed on 10/23/2017)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOHN W. LYLE, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No.17-cv-00426-JSC v. SAN MATEO COUNTY DISTRICT ATTORNEY OFFICE, et al., ORDER GRANTING LEAVE TO AMEND; RESOLVING PENDING MOTIONS Re: Dkt. Nos. 21, 22, 26 Defendants. 12 13 Plaintiff, an inmate at the San Mateo County Jail, filed this pro se civil rights action under 14 42 U.S.C. § 1983. The complaint was dismissed with leave to amend, and Plaintiff filed a First 15 Amended Complaint. (ECF Nos. 18, 23.) Thereafter, he filed papers that appear to be intended to 16 supplement the amended complaint. (ECF No. 25.) He has since filed a motion to dismiss his 17 complaint in order to complete exhausting his claims. (ECF No. 26.) Plaintiff certainly has the 18 right to voluntarily dismiss his case under Rule 41(a) of the Federal Rules of Civil Procedure, and 19 such a dismissal would be without prejudice, meaning that he would be able to file his claims 20 again at a later date after his claims are exhausted and he is ready to submit them. Plaintiff asks, 21 somewhat contradictorily, to dismiss without prejudice and with leave to amend. The Court 22 presumes that Plaintiff means that he does not want to dismiss this action, but rather that he wants 23 to further amend his complaint. Two letters received from Plaintiff following his motion to 24 dismiss further suggest that he would like to continue prosecuting this case and to amend his 25 complaint further. (ECF Nos. 27, 28.) Good cause appearing, Plaintiff’s motion to dismiss the 26 First Amended Complaint with leave to amend is GRANTED, as follows: 27 28 1. Within twenty eight (28) days from the date this order is filed, Plaintiff shall file a Second Amended Complaint that includes the caption and civil case number used in this Order 1 (No. C 17-0426 JSC (PR)) and the words “COURT-ORDERED SECOND AMENDED 2 COMPLAINT” on the first page. Because an amended complaint completely replaces the prior 3 versions of the complaint, see Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), Plaintiff 4 may not incorporate material from the original complaint or First Amended Complaint by 5 reference. He must include in his Second Amended Complaint all the claims he wishes to pursue. 6 Moreover, Plaintiff may not file his Second Amended Complaint in pieces or supplement it after 7 the fact. Rather, Plaintiff must include all the claims, allegations, and defendants he wishes to 8 include in this case in his Second Amended Complaint. Lastly, the Second Amended Complaint 9 must comply with the joinder rules discussed in the Order dismissing the complaint with leave to 10 United States District Court Northern District of California 11 12 13 14 15 16 17 amend. (ECF No. 18.) If Plaintiff fails to amend within the designated time and in accordance with this order, this case will proceed based upon the First Amended Complaint. 2. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address by filing a separate paper with the clerk headed “Notice of Change of Address.” He also must comply with the Court's orders in a timely fashion, although he may request an extension of time provided it is accompanied by a showing of good cause and it is filed on or before the deadline he wants to extend. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 3. Plaintiff’s motion for an extension of time (ECF No. 21) is DENIED as unnecessary. 18 His motion to stay the proceedings (ECF No. 22) is DENIED as moot because it pre-dates his 19 motion to amend the complaint. 20 This Order disposes of Docket Nos. 21, 22, and 26. 21 IT IS SO ORDERED. 22 Dated: October 23, 2017 23 24 25 JACQUELINE SCOTT CORLEY United States Magistrate Judge 26 27 28 2 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOHN W. LYLE, Case No. 17-cv-00426-JSC Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 SAN MATEO COUNTY DISTRICT ATTORNEY OFFICE, et al., Defendants. I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 23, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 18 19 20 John W. Lyle ID: 0264100 San Mateo County Jail 300 Bradford Street Redwood City, CA 94063 21 22 Dated: October 23, 2017 23 24 25 Susan Y. Soong Clerk, United States District Court 26 27 28 By:________________________ Ada Means, Deputy Clerk to the Honorable JACQUELINE SCOTT CORLEY 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?