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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JESSE CANTU, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 17-cv-02636-JD ORDER DENYING MOTION TO AMEND v. M. A. VELAZQAZ, et al., Re: Dkt. No. 20 Defendants. 12 13 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. 14 On November 7, 2017, the Court ordered service of the second amended complaint for three 15 defendants regarding allegations that they confiscated or destroyed plaintiff’s legal documents in 16 October 2016. Plaintiff has now filed a motion to amend and a third amended complaint. 17 The third amended complaint only contains allegations against a new defendant regarding 18 an incident that occurred on October 5, 2017. Plaintiff has not included the allegations and 19 defendants from the prior complaint; therefore, they would be dismissed from this action if this 20 new complaint were to proceed. Because an amended complaint completely replaces the original 21 complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 22 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the original complaint 23 by reference. In addition, plaintiff has not finished exhausting this new claim and can only 24 proceed with the claim once it has been exhausted. Finally, plaintiff has not sufficiently shown 25 that this new incident is related to the underlying incident in the complaint. 26 27 28 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. 1 Plaintiff may file a new action once he has fully exhausted this new claim. This case continues 2 against the defendants and claims discussed in the Order of Service (Docket No. 18). 3 4 IT IS SO ORDERED. Dated: January 9, 2018 5 6 JAMES DONATO United States District Judge 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 JESSE CANTU, Case No. 17-cv-02636-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 M. A. VELAZQAZ, et al., Defendants. 8 9 10 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 11 12 13 14 15 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. 16 17 18 Jesse Cantu ID: T73021 Pelican Bay State Prison P.O. Box 7500 Crescent City, CA 95532 19 20 21 Dated: January 9, 2018 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 27 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 28 3

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