Bennett v. Newsom et al

Filing 30

ORDER OF DISMISSAL; DENYING MOTION TO COMPEL AND FOR SANCTIONS. Signed by Judge Jacqueline Scott Corley on June 3, 2024. (ahm, COURT STAFF) (Filed on 6/3/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID BENNETT,
Plaintiff,

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v.

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GALVIN NEWSOM, et al.,

ORDER OF DISMISSAL; DENYING
MOTION TO COMPEL AND FOR
SANCTIONS
Re: Dkt. No. 29

Defendants.

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United States District Court
Northern District of California

Case No. 23-cv-05905-JSC

Plaintiff, currently an inmate at the Yolo County Jail proceeding without representation by

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an attorney, filed this civil action in the United States District Court for the Eastern District of

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California. The Eastern District granted him leave to proceed in forma pauperis and dismissed the

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complaint with leave to amend. (ECF No. 17.) Plaintiff filed an amended complaint (ECF No.

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20), and the Eastern District transferred the case to this Court under 28 U.S.C. § 1404(a) (ECF No.

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21).

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On April 9, 2024, the Court dismissed Plaintiff’s amended complaint for failure to present

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a claim that is capable of judicial determination. (ECF No. 27.) Plaintiff was granted 28 days to

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file a second amended complaint, and warned that if he did not do so the case would be dismissed.

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(ECF No. 27 at 12:24-25 (“If Plaintiff fails to file a second amended complaint within the

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designated time and in compliance with this order, or if it is not sufficient, the case will be

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dismissed.”) (emphasis omitted)). He has not filed an amended complaint, requested an extension

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of time to do so, or shown cause why not.

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Plaintiff has filed “objections” to the order dismissing the amended complaint with leave to

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further amend. (ECF No. 28.) Filing “objections” to court orders is not authorized by the Federal

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Rules of Civil Procedure, the Civil Local Rules, or any order by this Court. Under Rule 7 of the

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Federal Rules of Civil Procedure, the only pleading a plaintiff may file is a complaint, and any

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“request for a court order must be filed by a motion.” Fed. R. Civ. P. 7(a),(b). To the extent

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Plaintiff seeks reconsideration of the Court’s decision that he has not stated a claim that is capable

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of judicial determination, he must file a motion for reconsideration under Rule 59(e) (motion to

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alter or amend judgment) or Rule 60(b) (motion for relief from judgment) of the Federal Rules of

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Civil Procedure.

United States District Court
Northern District of California

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Plaintiff also filed a “motion for an order compelling discovery and motion for sanctions

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for noncompliance with court rule Fed. R. Civ. P. 11/Fed. R. Civ. P. 37(a).” (ECF No. 29.)

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Plaintiff indicates he “served” a copy of the amended complaint “titled as ‘First Amended

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Complaint with Motion for Summary Judgment and Interrogatories’” on “the Office of the

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Attorney General.” (Id. at 1.) Sending these items to the Attorney General does not satisfy the

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requirement to serve Defendants with a summons and complaint. See Fed. R. Civ. P. 4 (requiring

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service of summons and complaint and setting forth procedures for such service). In addition,

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Plaintiff has not stated a claim that is capable of judicial determination. See 28 U.S.C. § 1915A(b)

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(requiring district court to engage in a preliminary screening of cases in which prisoners seek

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redress from a government official and dismiss any claims which fail to state a claim upon which

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relief may be granted). Defendants were not obligated to respond to Plaintiff’s amended

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complaint, motion, or interrogatories because they have not been served, and Plaintiff has not

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submitted any claims that he may pursue. Accordingly, Plaintiff’s motion to compel and for

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sanctions is DENIED.

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As Plaintiff has not filed an amended complaint, requested an extension of time to do so,

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or shown cause why not, this case is DISMISSED with prejudice. See WMX Technologies v.

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Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (when complaint has been dismissed with leave to

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amend and plaintiff does not amend, further district court determination is necessary).

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The clerk shall enter judgment and close the file. This order resolves docket number 29.

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IT IS SO ORDERED.

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Dated: June 3, 2024

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JACQUELINE SCOTT CORLEY
United States District Judge

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