Dryden v. Barefield

Filing 23

ORDER that 19 Motion for Clarification is GRANTED to the extent that the court has now clarified the procedural posture of this case. The Clerk shall STRIKE 17 Second Amended Complaint. Signed by Magistrate Judge Peggy A. Leen on 1/28/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JEFFREY L. DRYDEN,

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v.

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Case No. 2:13-cv-01896-RCJ-PAL
ORDER

Plaintiff,

(Mtn to Clarify – Dkt. #19)

ANDREA BAREFIELD,

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Defendant.

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This matter is before the court on Defendant Andrea Barefield’s Motion for Clarification,

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or In the Alternative, Motion for Enlargement of Time to File a Responsive Pleading to

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Plaintiff’s Second Amended Complaint (Dkt. #19) filed January 16, 2015.

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considered the Motion.

The court has

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Plaintiff Jeffrey Dryden is proceeding in this matter pro se. Plaintiff requested and was

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granted leave to proceed in forma pauperis in an Order (Dkt. #2) entered May 28, 2015. The

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court screened Plaintiff’s Complaint (Dkt. #3), found Plaintiff had not stated a claim upon which

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relief could be granted, and allowed Plaintiff leave to file an amended complaint. Plaintiff filed

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two Amended Complaints (Dkt. ##4, 5), and the court screened the second-filed Amended

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Complaint (Dkt. #5)1 because it was more detailed. The court entered a Report of Findings and

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Recommendation (Dkt. #6) on October 23, 2014, finding Plaintiff had stated a procedural due

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process claim against Defendant in her individual capacity. The court recommended dismissal of

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the remainder of the claims in the Amended Complaint.

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For clarity, the court will refer to the Amended Complaint (Dkt. #5) it screened as the
Amended Complaint.
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Plaintiff filed an Objection (Dkt. #8) to the R&R, and while it was pending before the

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district judge, Defendant filed a Motion to Dismiss (Dkt. #11) the Amended Complaint. Plaintiff

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has not responded to the Motion to Dismiss, despite receiving an extension of time to do so. See

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Order (Dkt. #15). On January 2, 2015, the district judge entered an Order (Dkt. #14) accepting

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and adopting the R&R. On January 8, 2015, Plaintiff filed a Second Amended Complaint

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(“SAC”) (Dkt. #17) without leave of court.

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Defendant seeks an order clarifying the procedural posture of this case, or alternatively,

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granting an extension of time to respond to the SAC. The operative pleading in this matter is the

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Amended Complaint (Dkt. #5). Plaintiff filed the SAC in contravention of Rule 15 of the

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Federal Rules of Civil Procedure, which provides that a party may amend its pleading once as a

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matter of course within either (a) twenty-one days after serving it; or (b) twenty-one days after

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service of the responsive pleading. Fed. R. Civ. P. 15(a)(1). In all other cases, a party may only

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amend its pleading with the opposing party’s written consent or with leave of court. Fed. R. Civ.

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P. 15(a)(2). Here, Plaintiff amended his pleading once as a matter of course when he filed the

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Amended Complaint (Dkt. #5). The SAC was filed without leave of court or Defendant’s

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written consent.

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Accordingly,

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IT IS ORDERED:

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Defendant’s Motion for Clarification (Dkt. #19) is GRANTED to the extent that
the court has now clarified the procedural posture of this case.

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The Clerk of Court shall STRIKE the Second Amended Complaint (Dkt. #17).

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Dated this 28th day of January, 2015.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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