Opinion
1:22-cv-00392-JLT-EPG
04-26-2023
ALLAN THOMAS ROCKWELL, Plaintiff, v. MELISSA BROUHARD, Defendant.
ORDER STRIKING SECOND AMENDED COMPLAINT FOR EXCEEDING PAGE LIMITATION
(ECF No. 82).
ORDER GRANTING PLAINTIFF LEAVE TO FILE THIRD AMENDED COMPLAINT IN COMPLIANCE WITH PAGE LIMITATION
Plaintiff Allan Thomas Rockwell (“Plaintiff”) proceeds pro se in this civil rights action initiated on April 4, 2022. (ECF No. 1).
On November 15, 2022, the Court issued findings and recommendations recommending that Defendants Denise Choate, Michael Choate, Tuolumne County and Melissa Brouhards' motions to dismiss be granted in part. (ECF No. 76). The Court recommended that Defendants Denise Choate, Michael Choate, and Tuolumne County be terminated, and that Plaintiff be granted leave to amend only as to Plaintiffs claims against Defendant Brouhard. (Id.) The Court provided Plaintiff with the following guidelines regarding amendment:
The Court will allow Plaintiff to amend his complaint, except as to the claims and defendants subject to dismissal, as set forth below. However, Plaintiff's amended
complaint should include a “short and plain statement of the claim showing that the pleader is entitled to relief.” It should also explain which claims Plaintiff is bringing and the facts that support those claims. Additionally, Plaintiff's amended complaint should conform to the page requirements set forth by the Court.(ECF No. 76, p. 13). The Court's recommendation provided that:
9. If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the amended complaint “Second Amended Complaint” and refer to case number 1:22-cv-00392- JLT-EPG. Further, Plaintiff's amended complaint shall be no more than twenty (20) pages; and
10. Failure to comply with this order may result in the dismissal of this action.(Id. at p. 23) (emphasis in original). On March 9, 2023, District Judge Jennifer L. Thurston issued an order adopting the Court's findings and recommendations in full. (ECF No. 81). The order adopting included a similar direction and warning:
10. If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the amended complaint “Second Amended Complaint” and refer to case number 1:22-cv-00392- JLT-EPG. Further, Plaintiff's amended complaint shall be no more than twenty (20) pages.
11. Failure to comply with this order may result in the dismissal of this action without further notice.(Id. at p. 3) (emphasis in original).
Plaintiff filed a second amended complaint on April 10, 2023. (ECF No. 82). Upon review, the Court notes that Plaintiff's amended complaint is twenty-eight (28) pages in length, and includes an additional fifteen (15) pages of exhibits. (Id.)
As Plaintiff's second amended complaint fails to comply with the Court's order not to exceed twenty pages in length, the Court will strike the amended complaint from the record. See Wolf v. Idaho State Bd. of Correction, 2021 WL 3721434, at *2 (9th Cir. Aug. 23, 2021) (finding the district court did not abuse its discretion in striking a complaint that did not comply with the 20-page limit); see also Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (finding that a district court's inherent power to control the docket includes the power to strike items from the docket). Plaintiff will be permitted thirty (30) days to file a third amended complaint that complies with Federal Rules of Civil Procedure, the Local Rules, and this Court's order. If Plaintiff chooses to file a third amended complaint, Plaintiff's amended complaint shall be no more than twenty (20) pages. This page limit includes exhibits. However, Plaintiff need not attach any exhibits or include any evidence at this time.
Based on the foregoing, IT IS ORDERED that:
1. Plaintiff's second amended complaint, filed on April 10, 2023, (ECF No. 82), is STRICKEN from the record for failure to comply with the Court's page limitations;
2. Within thirty (30) days from the date of service of this order, Plaintiff may file a Third Amended Complaint;
3. If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the amended complaint “Third Amended Complaint” and refer to case number 1:22-cv-00392-JLT-EPG. Further, Plaintiff's amended complaint shall not exceed twenty (20) pages, including exhibits, in length.
4. If Plaintiff fails to comply with this order, the Court will recommend dismissal of this action, without prejudice, for failure to obey a court order and for failure to prosecute.
IT IS SO ORDERED.