(PC)Wilson v. Ortega ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ELROYAL JEROME WILSON, No. 2:21-cv-0314 KJM AC P 12 Plaintiff, 13 v. ORDER 14 J. ORTEGA, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding through counsel, has filed a second amended 18 complaint. ECF No. 55. 19 Under Federal Rule of Civil Procedure 15, a plaintiff may amend the complaint once as a 20 matter of course within “(A) 21 days after serving it, or (B) if the pleading is one to which a 21 responsive pleading is required, 21 days after service of a responsive pleading or 21 days after 22 service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). 23 “In all other cases, a party may amend its pleading only with the opposing party’s written consent 24 or the court’s leave.” Fed. R. Civ. P. 15(a)(2). 25 Plaintiff indicates that he is amending “as a matter of course.” ECF No. 55 at 1 n.1. 26 However, plaintiff already amended the complaint as a matter of course prior to screening by the 27 court. See ECF No. 7; United States ex rel. D’Agostino v. EV3, Inc., 802 F.3d 188, 193 (1st Cir. 28 2015) (the time to amend begins when plaintiff files his complaint, “the word ‘within’ merely 1 | specifies the point at which the right expires”). Since plaintiff has already amended once as a 2 || matter of course, he must first obtain defendants’ consent or leave of the court before amending 3 || again. The second amended complaint will therefore be stricken from the record and the parties 4 | remain obligated to file a joint status report as previously ordered. See ECF No. 54. 5 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to strike 6 || plaintiffs unauthorized second amended complaint (ECF No. 55) from the record. 7 | DATED: January 20, 2023 ~ 8 Hthren— Lhor—e_ ALLISON CLAIRE 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28