Opinion
Case No.: 1:17-cv-00507-LJO-SAB (PC)
05-04-2018
JAMES W. MILLNER, Plaintiff, v. DR. DILEO, et al., Defendants.
ORDER GRANTING PLAINTIFF LEAVE TO AMEND COMPLAINT TO NAME PROPER PARTY
[ECF No. 33]
THIRTY-DAY DEADLINE
I.
INTRODUCTION
Plaintiff Marcellas Hoffman is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds on Plaintiff's claim against Defendants DiLeo, Ulit, Spaeth, and the Chief Medical Examiner, in their individual capacity, for deliberate indifference in violation of the Eighth Amendment based on his wrist injury.
II.
BACKGROUND
On December 4, 2017, Plaintiff returned an executed proof of service with respect to the Chief Medical Examiner of Kern Valley State Prison ("KVSP"). (ECF No. 22.) The proof of service indicates that the Kern County Sheriff-Coroner served copies of the summons and complaint on the Chief Medical Examiner via Brian Hancock, Litigation Coordinator, at KVSP, at 3000 Cecil Avenue, Delano, California, 93216, by personal service. (Id.)
On March 6, 2018, the Court ruled on pending findings and recommendations regarding the screening of Plaintiff's claims in this case, and ordered that this mater proceed on the claim identified above. (ECF No. 28.) On March 8, 2018, the Court directed Defendants to respond to the complaint within fourteen (14) days. (ECF No. 29.) As a result, Defendant Chief Medical Examiner's answer to the complaint was due on or before March 22, 2018. The Chief Medical Examiner did not file any answer.
On March 26, 2018, the Court ordered Defendant Chief Medical Examiner to show cause why default should not be entered against him or her. (ECF No. 33.) No response was received.
In the meantime, on April 5, 2018, Defendants DiLeo, Spaeth, and Ulit answered the complaint. (ECF No. 44.) In response to certain allegations, Defendants DiLeo, Spaeth, and Ulit denied that there is any person employed at KVSP with the title, "Chief Medical Examiner." (Id. at ¶ 9.) A discovery and scheduling order was issued on April 6, 2018. (ECF No. 35.)
III.
LEAVE TO AMEND
Based on the foregoing, the Court finds good cause to grant Plaintiff leave to amend the complaint to identify Defendant "Chief Medical Examiner" and change the name of that party, if necessary. Fed. R. Civ. P. 15(a)(2). Plaintiff shall be permitted thirty (30) days to file an amended complaint. If additional time is needed, such as to conduct discovery to determine the identity of the defendant, Plaintiff may seek an extension of time supported by good cause.
Plaintiff should note that although he has been granted leave to amend, he may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff is further advised that an amended complaint supersedes the original complaint, Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc), and it must be "complete in itself without reference to the prior or superseded pleading," Local Rule 220. Each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled "Amended Complaint," refer to the appropriate case number (1:17-cv-00507-LJO-SAB), and be an original signed under penalty of perjury.
IV.
CONCLUSION
Accordingly, it is HEREBY ORDERED that:
1. The Clerk of the Court is hereby directed to send to Plaintiff an amended complaint form;
2. Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint as discussed in this order; and
3. No requests for extension of time will be granted without a showing of good cause. Failure to comply with this order will result in a recommendation for a sanction, potentially including a dismissal of a claim or party. IT IS SO ORDERED. Dated: May 4 , 2018
/s/_________
UNITED STATES MAGISTRATE JUDGE