Opinion
Case No.: 1:11-cv-00972 LJO JLT (PC)
12-17-2012
JOSEPH MARTINEZ GARCIA, Plaintiff, v. JAMES YATES, et al., Defendant.
ORDER DEEMING MOTION TO DISREGARD
AS A REQUEST FOR LEAVE TO FILE THIRD
AMENDED COMPLAINT
ORDER GRANTING LEAVE TO FILE THIRD
AMENDED COMPLAINT
(Doc. 25)
Plaintiff Joseph Garcia is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. On April 23, 2012, Plaintiff filed a "Motion to Disregard his First Amended Complaint (Doc. 13)." In his motion, Plaintiff asks the Court to disregard the complaint he filed on July 13, 2011 and deem the complaint he attached to his April 23, 2012 motion as his operative complaint.
Plaintiff's First Amended Complaint was actually filed on June 23, 2011 (Doc. 10). He later filed his Second Amended Complaint on July 13, 2011. (Doc. 13). Thus, Plaintiff's current motion filed as docket #13, relates to his Second Amended Complaint and not his First Amended Complaint.
Given the prior pleadings filed by Plaintiff, the complaint attached to Plaintiff's April 23, 2012 motion would be Plaintiff's Third Amended Complaint.
--------
Plaintiff is able to file an amended pleading once as a matter of course, but beyond that "a party may amend its pleading only with . . . the court's leave." Fed.R.Civ.P. 15(a)(2). Since Plaintiff previously filed a First Amended Complaint, he was required to request permission from this Court before filing a newly amended complaint. Plaintiff's current motion, although incorrectly named, seems to seek such permission. As result, the Court will deem Plaintiff's motion to disregard as a motion for leave to file a Third Amended Complaint.
The Court has not yet screened Plaintiff's Second Amended Complaint. Thus, for the sake of judicial economy, the Court will accept the Third Amended Complaint (Doc. 25) and will screen Plaintiff's newly filed complaint in due course. IT IS SO ORDERED.
Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE