(PC) Pull v. Deputy Todd ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD JAMES PULL, No. 1:23-cv-0135 GSA (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO FILE PLAINTIFF’S LODGED COMPLAINT 13 v. AS SECOND AMENDED COMPLAINT 14 DEPUTY TODD, et al., (ECF No. 14) 15 Defendants. ORDER DENYING PLAINTIFF’S MOTIONS TO AMEND COMPLAINT 16 (ECF Nos. 13, 15) 17 ORDER DIRECTING PLAINTIFF TO 18 COMPLETE AND FILE NOTICE ON HOW TO PROCEED BY DECEMBER 7, 2023 19 ORDER DIRECTING PLAINTIFF TO FILE 20 AMENDED COMPLAINT BY DECEMBER 22, 2023 21 22 Plaintiff, a county jail inmate proceeding pro se and in forma pauperis, has filed this civil 23 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 24 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Plaintiff’s First 25 Amended Complaint (“FAC”) is the operative complaint currently before the Court for review. 26 See ECF No. 12. 27 28 1 Plaintiff has filed two motions to amend the statement of facts in his FAC. ECF Nos. 13, 2 15. He has also lodged an amended complaint. ECF No. 14. For the reasons stated below, both 3 of Plaintiff’s motions to amend the statement of facts will be denied. In addition, the Clerk of 4 Court will be directed to file Plaintiff’s lodged complaint as his Second Amended Complaint 5 (“SAC”). Finally, Plaintiff will be ordered to return the attached Notice on How to Proceed, and 6 he will be given a third and final opportunity to amend if he feels the need to do so. 7 I. BACKGROUND 8 On January 27, 2023, Plaintiff’s complaint was docketed. ECF No. 1. Thereafter, 9 Plaintiff’s in forma pauperis application was granted (ECF No. 7), and in June 2023, the 10 complaint was screened (ECF No. 9). Upon screening, the Court directed Plaintiff either to file 11 an amended complaint, or to proceed on the original complaint as screened. ECF No. 9 at 16. 12 On July 31, 2023, Plaintiff’s FAC was docketed. ECF No. 12. On August 10, 2023, 13 Plaintiff’s first motion to amend the statement of facts in the FAC was docketed. ECF No. 13. 14 On September 28, 2023, the instant amended complaint was lodged, and Plaintiff’s second 15 motion to amend the statement of facts in his FAC was docketed. ECF Nos. 14, 15, respectively. 16 II. DISCUSSION 17 A. Motions to Amend 18 Both of Plaintiff’s motions to amend the statement of facts in the FAC will be denied. A 19 complaint must be complete in and unto itself. See Local Rule 220. References to other 20 documents or information not filed with the complaint are not permitted, and a court will not 21 consider them. As a result, any claims that are not alleged in a filed complaint are deemed to 22 have been waived. See Lacey v. Maricopa. Maricopa, 693 F.3d 896, 925 (9th Cir. 2012) 23 (citations omitted). 24 Because the information in the motions to amend the FAC are separate from the FAC and 25 from the lodged amended complaint (see generally ECF Nos. 13, 14, 15) (two motions and 26 lodged amended complaint), the Court is unable to consider it. The only way to remedy this 27 problem is for Plaintiff to file an amended complaint which contains all the information and 28 1 evidence that Plaintiff would like the Court to consider. Therefore, he will be given a final 2 opportunity to amend the complaint. 3 B. Lodged Complaint 4 As for Plaintiff’s lodged complaint (see ECF No. 14), because Plaintiff intended for it to 5 be considered by the Court, the Clerk of Court will order that it be filed as Plaintiff’s “Second 6 Amended Complaint.” Thereafter, if Plaintiff wishes to stand on the SAC as the operative 7 complaint, he is free to do so. If, however, Plaintiff still wishes to further amend he may do that 8 instead. Plaintiff will be ordered to inform the Court which course of action he would like to take 9 by returning the form attached to this order. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The Clerk of Court is directed to FILE Plaintiff’s lodged amended complaint (ECF 12 No. 14) as his Second Amended Complaint; 13 2. Plaintiff’s motion to amend, docketed August 10, 2023 (ECF No. 13), is DENIED; 14 3. Plaintiff’s motion to amend, docketed September 28, 2023 (ECF No. 15), is DENIED; 15 4. Plaintiff shall complete and file the attached Notice on How to Proceed by December 16 7, 2023, and 17 5. If Plaintiff decides to file an amended complaint, he must do so by December 22, 18 2023. 19 IT IS SO ORDERED. 20 21 Dated: November 22, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD JAMES PULL, No. 1:23-cv-00135 GSA (PC) 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 14 DEPUTY TODD, et al., 15 Defendants. 16 CHECK ONE: 17 Plaintiff would like the Court to consider his Second Amended Complaint. Plaintiff 18 understands that this means that the Court will only consider the information that is in that 19 pleading and that no other documents that were filed before or after it will be reviewed. 20 Plaintiff would like to amend the complaint. 21 22 DATED: _______________________________ 23 EDWARD JAMES PULL Plaintiff Pro Se 24 25 26 27 28