(PC) Shepard v. Gannon ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 LAMONT SHEPARD, Case No. 1:23-cv-01486-NODJ-EPG (PC) 11 Plaintiff, ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR LEAVE TO 12 v. FILE AN AMENDED COMPLAINT 13 S. GANNON, ET AL., (ECF No. 16) 14 Defendants. 15 16 Plaintiff Lamont Shepard is a state prisoner proceeding pro se in this civil rights action 17 filed under 42 U.S.C. § 1983. Plaintiff commenced this suit by filing a complaint on October 18 18, 2023. (ECF No. 1). Then on January 29, 2024, Plaintiff filed First Amended Complaint 19 (ECF No. 14), thereby exhausting his right to amend complaint once without obtaining leave of 20 court under Rule 15(a)(1). On February 12, 2024, Plaintiff filed a motion to amend his 21 complaint again, seeking to add new defendants and new claims. (ECF No. 15). 22 However, Plaintiff did not submit a proposed amended complaint with his motion as 23 required by the Court’s Local Rules. See Local Rule 137(c) (“If filing a document requires 24 leave of court, such as an amended complaint after the time to amend as a matter of course has 25 expired, counsel shall attach the document proposed to be filed as an exhibit to moving papers 26 seeking such leave. . . . If the Court grants the motion, counsel shall file and serve the 27 document in accordance with these Rules . . . .”). Thus, Plaintiff’s motion is denied without 28 prejudice. 1 Additionally, and without deciding the issue, Plaintiffs proposed claims and defendants 2 || may not be permitted under settled law. Plaintiff seeks to add claims against prosecutors, 3 || California Department of Corrections and Rehabilitation (CDCR), California Correctional 4 || Institution (CCD, and several municipalities. (ECF No. 15 at 1). Prosecutors are generally 5 ||immune from such lawsuits under well-settled law. Lacey v. Maricopa County, 693 F.3d 896, 6 || 912 (9th Cir. 2012) (“Prosecutors performing their official prosecutorial functions are entitled 7 || to absolute immunity against constitutional torts.”). CCI is a state prison under the control of 8 || CDCR, a state agency of the state of California and thus subject to sovereign immunity. State 9 || agencies and prisons are also not “persons” within the meaning of § 1983, and therefore cannot 10 || be subject to suits for violation of Plaintiff's constitutional rights. Maldonado v. Harris, 370 11 || F.3d 945, 951 (9th Cir. 2004) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 12 || (1989)). And while a municipality can be sued under § 1983, it generally cannot be held liable 13 || unless a municipal policy or custom caused the constitutional injury. Leatherman v. Tarrant 14 || Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 166 (1993). 15 If the Plaintiff chooses to file the motion along with the proposed amended complaint, 16 || the new complaint should be clearly and boldly titled “Second Amended Complaint,” refer to 17 || the appropriate case number, and be an original signed under penalty of perjury. The new 18 || pleading must be complete in itself without reference to the prior or superseded pleading and 19 || each claim and the involvement of each defendant must be sufficiently alleged. 20 Accordingly, IT IS ORDERED that Plaintiff's motion for leave to file an amended 21 || complaint (ECF No. 16) is denied without prejudice. 22 54 IT IS SO ORDERED. Dated: _ February 26, 2024 [Je heey —— 25 UNITED STATES MAGISTRATE JUDGE 26 27 28