Cantu v. Velazqaz

Filing 23

ORDER by Judge James Donato denying 20 Motion to Amend/Correct. (lrcS, COURT STAFF) (Filed on 1/9/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JESSE CANTU,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-02636-JD

ORDER DENYING MOTION TO
AMEND

v.
M. A. VELAZQAZ, et al.,

Re: Dkt. No. 20

Defendants.

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.

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On November 7, 2017, the Court ordered service of the second amended complaint for three

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defendants regarding allegations that they confiscated or destroyed plaintiff’s legal documents in

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October 2016. Plaintiff has now filed a motion to amend and a third amended complaint.

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The third amended complaint only contains allegations against a new defendant regarding

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an incident that occurred on October 5, 2017. Plaintiff has not included the allegations and

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defendants from the prior complaint; therefore, they would be dismissed from this action if this

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new complaint were to proceed. Because an amended complaint completely replaces the original

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complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet,

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963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the original complaint

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by reference. In addition, plaintiff has not finished exhausting this new claim and can only

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proceed with the claim once it has been exhausted. Finally, plaintiff has not sufficiently shown

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that this new incident is related to the underlying incident in the complaint.

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For the foregoing reasons, plaintiff’s motion to amend (Docket No. 20) is DENIED. The
Clerk shall send plaintiff a blank civil rights form and application to proceed in forma pauperis.

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Plaintiff may file a new action once he has fully exhausted this new claim. This case continues

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against the defendants and claims discussed in the Order of Service (Docket No. 18).

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IT IS SO ORDERED.
Dated: January 9, 2018

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JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JESSE CANTU,

Case No. 17-cv-02636-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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M. A. VELAZQAZ, et al.,
Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on January 9, 2018, 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.

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Jesse Cantu ID: T73021
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95532

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Dated: January 9, 2018

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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