(PC) Nedd v. Landon ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JEFFEREY S. NEDD, Case No. 1:23-cv-01630-HBK (PC) 11 Plaintiff, ORDER DISREGARDING PLAINTIFF’S SECOND AMENDED COMPLAINT 12 v. (Doc. No. 9) 13 LANDON BIRD, ORDER DIRECTING CLERK TO ACCEPT 14 Defendant. PLAINTIFF’S LODGED AMENDED CIVIL COMPLAINT AND TITLE IT PLAINTIFF’S THIRD AMENDED COMPLAINT 15 (Doc. No. 12) 16 ORDER DENYING MOTION FOR 17 DISCOVERY INCORPORATED THEREIN 18 (Doc. No. 12) 19 ORDER STRIKING UNSIGNED COMPLAINT 20 (Doc. No. 13) 21 22 This matter comes before the Court upon periodic review of the file. Pending review 23 before the Court are several pleadings filed by pro se Plaintiff Jefferey S. Nedd. These include a 24 Second Amended Complaint filed November 29, 2023 (Doc. No. 9); two lodged Amended Civil 25 Rights Complaints filed December 5, 2023 (Doc. Nos. 12, 13); a motion for production of 26 documents incorporated with the lodged Amended Civil Rights Complaint, (Doc. Nos. 12, 13); 27 and Plaintiff’s declaration (Doc. No. 14), to which are attached several pages of exhibits. For the 28 reasons set forth below, the Court will disregard Plaintiff’s Second Amended Complaint (Doc. 1 No. 9) as mooted by Plaintiff’s subsequent lodged Amended Complaints (Doc. Nos. 12, 13), 2 strike the unsigned lodged Amended Complaint (Doc. No. 13), and deem the signed lodged 3 Amended Complaint the operative pleading and direct the Clerk to properly label the pleading as 4 Plaintiff’s “Third Amended Complaint” (Doc. No. 12, “TAC”). The Court liberally construes 5 Doc. No. 14 as a declaration and exhibits in support of the TAC. 6 A. Plaintiff’s Second Amended Complaint (Doc. No. 9) 7 On November 27, 2023, Plaintiff submitted for docketing a Second Amended Complaint. 8 (Doc. No. 9). It appears Plaintiff submitted the Second Amended Complaint prior to receiving 9 the Court’s November 28, 2023 Screening Order. (Doc. No. 8). Moreover, Plaintiff subsequently 10 filed two later pleadings designated as “Amended Civil Rights Complaints,” thus the mooting his 11 earlier filed Second Amended Complaint. 12 B. Plaintiff’s Amended Complaint (Doc. No. 12) 13 On December 5, 2023, Plaintiff lodged an Amended Civil Rights Complaint, which 14 includes a pleading titled “Motion for Production of Docunients [sic] to Identify John Doe 15 Defendants.” (Doc. No. 12). As this is the later-filed amended complaint and properly signed in 16 compliance with Rule 11, the Court will direct the Clerk to accept the lodged Amended 17 Complaint and properly title it Plaintiff’s “Third Amended Complaint,” which the Court deems as 18 the operative complaint in this matter. See Fed. R. Civ. P. 11(a). 19 As to Plaintiff’s Motion contained therein, because it requests the production of 20 documents, the Court construes it as a Motion for Discovery. In the interest of judicial economy, 21 however, the Court typically does not begin the discovery process until the operative complaint 22 has been screened, any eligible defendants have been served, and those defendants have answered 23 the complaint. See Hernandez v. Williams, 2019 WL 5960089 (S.D. Cal. April 27, 2022). 24 Plaintiff’s retitled Third Amended Complaint has not yet been screened and no defendants have 25 been served in this action. Plaintiff’s Motion for Discovery is therefore premature and will be 26 denied without prejudice. 27 C. Plaintiff’s Amended Complaint (Doc. No. 13) 28 Also on December 5, 2023, Plaintiff lodged another Amended Complaint (Doc. No. 13) 1 that appears to be duplicative of the Amended Complaint filed the same day (Doc. No. 12), 2 except that it lacks a signature. 3 Rule 11 requires all pleadings, written motions, and other papers be signed by at least one 4 attorney of record or by a party personally if the party is unrepresented. Fed. R. Civ. P. 11(a); see 5 also Local Rule 131(b). The Court cannot consider Plaintiff’s unsigned proposed amended 6 complaint and is required to strike it. See, e.g., West v. Hulbert, 2016 WL 2854416, at *1 (E.D. 7 Cal. May 16, 2016) (“Because the Court cannot consider unsigned filings, the complaint must be 8 STRICKEN”); Anderson v. Krpan, 2015 WL 402086, at *2 (E.D. Cal. Jan. 29, 2015) (“The Court 9 cannot consider unsigned filings and therefore, the first amended complaint shall be stricken from 10 the record.”). Here, Plaintiff’s lodged Amended Civil Rights Complaint (Doc. No. 13) is 11 unsigned, in violation of Rule 11 and Local Rule 131(b). Moreover, it is otherwise duplicative of 12 Plaintiff’s previous lodged Amended Complaint (Doc. No. 12) filed the same day, which is 13 signed. Accordingly, the Court directs the Clerk to strike the unsigned lodged Amended 14 Complaint (Doc. No. 13). 15 D. Plaintiff’s Declaration and Exhibits (Doc. No. 14) 16 Finally, on December 26, 2023, Plaintiff filed a pleading titled “Declaration of Jefferey 17 Nedd RE: Missing Mail.” (Doc. No. 14). The pleading attaches several exhibits, including what 18 appear to be docket summaries for (1) Plaintiff’s federal habeas petition and (2) Ninth Circuit 19 appeal, (3) a copy of an Office of Grievances Decision regarding Plaintiff’s interference with mail 20 claim, (4) a letter from attorney Richard Fitzer, and (5) a copy of a July 25, 2023 Order from the 21 Ninth Circuit denying Plaintiff’s request for a certificate of appealability. (Id. at 4-18). The 22 Court liberally construes the pleading as a declaration and related exhibits in support of Plaintiff’s 23 Third Amended Complaint (Doc. No. 12), and the Court will consider these exhibits when it 24 screens the Third Amended Complaint. 25 Accordingly, it is hereby ORDERED: 26 1. The Court disregards Plaintiff’s Second Amended Complaint (Doc. No. 9) as mooted 27 by his later filed Amended Civil Rights Complaints. 28 1 2. The Clerk of Court shall file and docket Plaintiff's lodged Amended Complaint (Doc. 2 No. 12) and title the pleading as Plaintiff's “Third Amended Complaint.” 3 3. The Court DENIES as premature Plaintiff's Motion for Discovery (Doc. No. 12 at 7). 4 4. The Clerk of Court shall STRIKE Plaintiff's unsigned Amended Complaint (Doc. No. 5 13). 6 5. The Court construes Plaintiffs declaration and exhibits (Doc. No. 14) as filed in 7 support of Plaintiff's retitled Third Amended Complaint (Doc. No. 12). 8 6. The Court will screen Plaintiffs Third Amended Complaint (Doc. No. 12), which the 9 Court deems to be the operative complaint, in due course. 10 "| Dated: _ March 5, 2024 Wile. □□□ foareh Zack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28