(PC) Cain v. Paviglianti ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO LAMONT CAIN, Case No. 2:20-cv-01768-JDP (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO AMEND THE COMPLAINT AND 13 v. DENYING UNITED STATES OF AMERICA’S MOTIONS FOR 14 B. PAVIGLIANTI1, CLARIFICATION AND FOR AN EXTENSION OF TIME 15 Defendant. ECF Nos. 32, 33, 37 16 FINDINGS AND RECOMMENDATIONS 17 THAT PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT BE DENIED 18 ECF No. 35 19 20 Plaintiff is a federal prisoner proceeding without counsel in this Bivens action.2 The court 21 previously screened plaintiff’s first amended complaint and found that it stated an Eighth 22 Amendment excessive force claim against defendant Paviglianti. ECF No. 16. The U.S. Marshal 23 24 1 Plaintiff first amended complaint identified defendant as “B. Pauigliati.” ECF No. 13. Defendant has filed a waiver of service that explains that the correct spelling of his name is “B. 25 Paviglianti.” ECF No. 31 at 1. Accordingly, the Clerk of the Court is directed to amend the case name to Cain v. Paviglianti, 2:20-cv-01768-JDP. 26 2 A reference to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Civil rights 27 actions under § 1983 and Bivens “are identical save for the replacement of a state actor under [Section] 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 28 1991). 1 was directed to notify defendant of this action, and defendant subsequently filed a waiver of 2 formal service. Plaintiff has since filed a motion to amend the complaint, ECF No. 33, and a 3 motion for default judgment, ECF No. 35. 4 The Federal Rules of Civil Procedure permit plaintiff to amend his complaint as a matter 5 of course before service of a responsive pleading. See Fed. R. Civ. P. 15(a). Accordingly, his 6 motion to amend is granted. He must file his amended complaint within thirty days of this 7 order’s entry. Plaintiff is advised that his amended complaint will supersede the current 8 complaint. See Lacey v. Maricopa Cnty., 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc). This 9 means that the amended complaint must be complete on its face without reference to the prior 10 pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is filed, the current 11 complaint no longer serves any function. Therefore, in an amended complaint, as in an original 12 complaint, plaintiff must assert each claim and allege each defendant’s involvement in sufficient 13 detail. The amended complaint should be titled “Second Amended Complaint” and refer to the 14 appropriate case number. 15 I recommend that plaintiff’s motion for default judgment, ECF No. 35, be denied. 16 Defendant is required to file a response to the first amended complaint within sixty days of being 17 served or sixty days of “service on the United States attorney, whichever is later.” Fed. R. Civ. 18 P. 12(a)(3). Although defendant has filed a waiver of service, the United States attorney was 19 never properly served. Consequently, the sixty-day deadline for defendant to file a responsive 20 pleading never commenced, and therefore default judgment is not appropriate.3 Plaintiff is 21 advised that, upon receipt, the court will screen his second amended complaint and, if 22 appropriate, direct service on the United States attorney. 23 Accordingly, it is hereby ORDERED that: 24 1. Plaintiff’s motion to amend the complaint, ECF No. 33, is granted. 25 2. Plaintiff shall file a second amended complaint within thirty days of the date of this 26 3 The United States Attorney’s office has filed a motion for clarification of the deadline to 27 file a responsive pleading, ECF No. 32, and a motion for an extension of time to respond to plaintiff’s motion for default judgment, ECF No. 37. In light of the recommendation that 28 plaintiff’s motion for default judgment be denied, those motions are denied as moot. 1 | order. 2 3. The United States Attorney’s office’s motion for clarification, ECF No. 32, and motion 3 | for an extension of time, ECF No. 37, are denied as moot. 4 4. The Clerk of the Court is directed to amend the case name to Cain v. Paviglianti, 2:20- 5 cv-01768-JDP. 6 5. The Clerk of Court shall randomly assign a United States District Judge to this case. 7 Further, it is RECOMMENDED that plaintiff's motion for default judgment, ECF No. 35, 8 || be denied. 9 I submit these findings and recommendations to the district judge under 28 U.S.C. 10 | § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 11 | Eastern District of California. The parties may, within 14 days of the service of the findings and 12 | recommendations, file written objections to the findings and recommendations with the court. 13 | Such objections should be captioned “Objections to Magistrate Judge’s Findings and 14 | Recommendations.” The district judge will review the findings and recommendations under 28 15 U.S.C. § 636(b))(C). 16 7 IT IS SO ORDERED. 18 ( q oy — Dated: _ February 8, 2022 19 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28