Williams v. Perez et al

Filing 31

ORDER ADDRESSING PENDING MOTIONS. Motions terminated: 25 MOTION for Discovery Deposition and Interrogatories to Witness Magdy Danial filed by James Edward Williams, 19 MOTION Summons Demand filed by James Edward Williams, 7 MOTION to Am end/Correct filed by James Edward Williams, 22 MOTION for Extension of Time to File Dispositive Motion filed by R. Perez, 8 MOTION to Amend/Correct filed by James Edward Williams, 29 MOTION for Discovery Deposition and Interrogators to Captain Klinkini filed by James Edward Williams. Signed by Judge Ronald M. Whyte on 10/11/12. (jgS, COURT STAFF) (Filed on 10/12/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JAMES EDWARD WILLIAMS,
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Plaintiff,
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v.
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R. PEREZ, et al.,
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Defendants.
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No. C 12-1691 RMW(PR)
ORDER ADDRESSING
PENDING MOTIONS

(Docket Nos. 7, 8, 19, 22, 25,
29)

Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42
U.S.C. § 1983. The Court issued an order of service for Defendants R. Perez and J. Juarez.
On June 6 and June 13, 2012, Plaintiff filed two motions to amend his complaint. One of

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those motions appears to contain an amended complaint, adding four more defendants. On July

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20, 2012, Plaintiff filed another amended complaint, in which he requests the addition of two

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more defendants, previously dismissed by the court in its order of service, but plaintiff does not

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acknowledge the four defendants he wanted to add in his motion to amend.

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A plaintiff may amend the complaint once as a matter of course within 21 days after

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serving it. Fed. R. Civ. P. 15(a)(1)(A). But if the complaint requires a responsive pleading, a

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plaintiff may amend the complaint 21 days after service of a responsive pleading or 21 days after

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service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Id. at (a)(1)(B). In all

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other cases, a plaintiff must obtain the defendant’s consent or leave of court to amend a

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complaint. Id. at (a)(2). The court will GRANT plaintiff leave to amend his complaint.

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However, because of the discrepancies described above, the court cannot determine what
Order Addressing Pending Motions
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defendants plaintiff would like to include. Plaintiff must file one operative complaint and may

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not incorporate material, or merely make reference to information, from the prior complaints.

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Plaintiff must file his SECOND AMENDED COMPLAINT within thirty days from the filing

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date of this order.

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Because the court is striking the first amended complaint, plaintiff’s motion to serve

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summons is DENIED as premature. The deadline for defendants to file their dispositive motion

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is VACATED; the court shall issue a new briefing schedule after plaintiff files his second

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amended complaint. Defendants’ motion for an extension of time to file a dispositive motion is

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DENIED as moot. Similarly, plaintiff’s motion for discovery deposition and interrogatories is

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DENIED as premature.

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Plaintiff shall file a SECOND AMENDED COMPLAINT within thirty days from the

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date this order is filed. The second amended complaint must include the caption and civil case

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number used in this order (C 12-1691 RMW (PR)) and the words SECOND AMENDED

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COMPLAINT on the first page. If plaintiff files a second amended complaint, he must allege, in

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good faith, facts - not merely conclusions of law - that demonstrate that he is entitled to relief

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under the applicable federal statutes. Failure to file a second amended complaint within

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thirty days and in accordance with this order will result in a finding that further leave to

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amend would be futile and this action will proceed as stated in the court’s July 11, 2012

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order of service.

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Plaintiff is advised that an amended complaint supersedes the original complaint. “[A]

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plaintiff waives all causes of action alleged in the original complaint which are not alleged in the

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amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Defendants not named in an amended complaint are no longer defendants. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court

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informed of any change of address by filing a separate paper with the clerk headed “Notice of

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Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to do

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so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of
Order Addressing Pending Motions
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Civil Procedure 41(b).

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This order terminates docket numbers 7, 8, 19, 22, 25, and 29.

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IT IS SO ORDERED.

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DATED:
RONALD M. WHYTE
United States District Judge

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Order Addressing Pending Motions
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

JAMES EDWARD WILLIAMS,

Case Number: CV12-01691 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
R. PEREZ et al,
Defendant.

/

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 12, 2012, 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.

James Edward Williams V-54214
Salinas Valley State Prison
Housing: A-5-143
P.O. Box 1050
Soledad, CA 93960
Dated: October 12, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk