O'Neal v. Johnson

Full title: SEAN O'NEAL, Plaintiff, v. AUGUST JOHNSON, et al., Defendants.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Aug 28, 2015

2:14-cv-2374 DAD PS (E.D. Cal. Aug. 28, 2015)

Opinion

SEAN O'NEAL, Plaintiff, v. AUGUST JOHNSON, et al., Defendants. No. 2:14-cv-2374 DAD PS United States District Court, E.D. California. August 28, 2015

          ORDER

          DALE A. DROZD, Magistrate Judge.

         This matter came before the court on August 7, 2015, for the hearing of plaintiff's motion to add defendants.¹ Plaintiff's motion was granted, plaintiff's proposed sixth amended complaint filed July 20, 2015 was deemed the operative pleading and plaintiff was ordered to serve the sixth amended complaint on the newly named defendants. (Dkt. No. 42.)

1 The parties currently before the court have previously consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. § 636(c)(1). (Dkt. No. 16.)

         On August 17, 2015, plaintiff filed a motion for further leave to amend and set the matter for hearing before the undersigned on September 18, 2015. (Dkt. No. 47.) Therein, plaintiff states that again "correction is necessary to correct, add claims, drop defendants, restate an inadequately pleaded claim, request additional relief, and alter theory of claim, " and "fix the 1983 claim against Officer August Johnson." (Id. at 1.) In this regard, plaintiff asserts that because "the Court told the plaintiff he could not sue his public defender, " that plaintiff "was under the impression that he was to drop the public defender." (Id. at 2.) Moreover, plaintiff claims that "[o]n August 7, 2015 the Plaintiff talked about how it was necessary to leave (sic) to amend complaint Docket #33' to fix the 1983 Claim, " and that plaintiff "was told he was free to amend his complaint and fix complaint Docket #33." (Id.) However, "instead Docket #36 was granted, " and "these two proposed amended complaint (sic) were very different." (Id.)

         Plaintiff is mistaken. As a result of the court's order after the August 7, 2015 hearing, plaintiff was not free to amend his complaint further. Instead, the court granted him leave to amend to proceed on the proposed sixth amended complaint plaintiff filed on July 10, 2015, (Dkt. No. 33), and again on July 20, 2015. (Dkt. No. 36.) Plaintiff was told at the August 7, 2015 hearing and in the August 7, 2015 order after hearing that "[n]o further amendment to the sixth amended complaint will be permitted in this action." (Dkt. No. 42 at 1.)

         With respect to plaintiff's statement that the proposed sixth amended complaint plaintiff filed on July 10, 2015, is "very different" from the proposed sixth amended complaint plaintiff filed on July 20, 2015, it was plaintiff who drafted and filed these documents, identifying them as his "PROPOSED 6TH AMENDED COMPLAINT, " (Dkt. No. 33 at 3), and his "PROPOSED 6TH AMENDED COMPLAINT AMENDED." (Dkt. No. 36 a 6.) In the future, plaintiff should avoid filing multiple pleadings and should instead exercise care and deliberation in his filings. Nonetheless, plaintiff will be provided an opportunity to elect which of his proposed sixth amended complaints he wishes to proceed on.

         Accordingly, IT IS ORDERED that:

         1. Plaintiff's August 17, 2015 motion for leave to amend (Dkt. No. 47) is denied;

         2. The September 18, 2015 hearing of plaintiff's motion for leave to amend is dropped from the court's calendar; and

         3. Within 7 days of the date of this order plaintiff shall file a writing identifying whether he wishes to proceed on the proposed sixth amended complaint he filed on July 10, 2015 (Dkt. No. 33) or the proposed sixth amended complaint he filed on July 20, 2015. (Dkt. No. 36.)