Venson v. Evans et al

Filing 83

ORDER DENYING PLAINTIFF'S MOTIONS FOR LEAVE TO AMEND AND TO LIFT STAY, AND GRANTING HIS MOTION FOR A NEW SCHEDULING ORDER by Judge Phyllis J. Hamilton denying 76 Motion for Leave to File; granting in part and denying in part 77 Motion (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 11/15/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CLIFFORD ALLAN VENSON,
Plaintiff,

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For the Northern District of California

United States District Court

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No. C 05-4136 PJH (PR)

v.
M. S. EVANS, Warden, et al.,
Defendants.
/

ORDER DENYING
PLAINTIFF’S MOTIONS FOR
LEAVE TO AMEND AND TO
LIFT STAY, AND GRANTING
HIS MOTION FOR A NEW
SCHEDULING ORDER

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This is a civil rights case filed pro se by a state prisoner. A motion to dismiss by the

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only remaining defendant in the case, Correctional Officer T. Whitman, was denied, and the

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case was referred to a magistrate judge to hold a settlement conference. The case did not

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settle. The stay that was imposed for the settlement conference has expired by its own

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terms. Because of a staff error, this was overlooked. The court regrets the delay.

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Plaintiff has moved for leave to amend the complaint. He has, however, not

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provided a proposed amended complaint, as required by Civil Local Rule 10-1. In the

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motion, plaintiff says that he wishes to add three named parties, two of whom denied his

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grievance and one of whom was the interviewer on the grievance. If the motion for leave to

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amend were treated as the proposed amendment itself, the rule that an amended complaint

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completely replaces the original complaint, see Ferdik v. Bonzelet, 963 F.2d 1258, 1262

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(9th Cir. 1992), would mean that Whitman would no longer be in the case, see id.

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(defendants not named in an amended complaint are no longer in the case). This clearly

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was not plaintiff’s intent. The motion for leave to amend (document number 76 on the

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docket) therefore is DENIED with leave to renew it, supported by a proposed amended

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complaint containing all the claims plaintiff wishes to present, within thirty days of the date

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of this order. Plaintiff should note, however, that his constitutional claim is one for

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excessive force at a particular time prior to the grievance, and failure to provide redress for

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a completed constitutional violation may not in itself be actionable.

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Plaintiff’s motion to lift the stay (document number 77) IS DENIED as moot, the stay

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having expired by its own terms. His motion for a new scheduling order (also document 77)

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is GRANTED.

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1. Plaintiff may file a renewed motion for leave to amend within thirty days of the

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date of this order. If he does not, the case will proceed against defendant Whitman only. If

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he does file a renewed motion and leave to amend is granted, the court will enter a new

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For the Northern District of California

United States District Court

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scheduling order.
2. If plaintiff does not renew his motion for leave to amend, defendant shall file a

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motion for summary judgment within sixty days of the date this order is entered. Because

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of the age of this case, extensions will be granted only under the most compelling

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circumstances. If plaintiff desires to oppose the motion for summary judgment, he shall do

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so within thirty days of the date the motion for summary judgment is served on him. Any

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reply will be due within fourteen days of the date the opposition is served on defendant.

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IT IS SO ORDERED.

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Dated: November 15, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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P:\PRO-SE\PJH\CR.05\VENSON136.schedule.wpd

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