Opinion
2:21-cv-0314 KJM AC P
01-20-2023
ELROYAL JEROME WILSON, Plaintiff, v. J. ORTEGA, et al., Defendants.
ORDER
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner proceeding through counsel, has filed a second amended complaint. ECF No. 55.
Under Federal Rule of Civil Procedure 15, a plaintiff may amend the complaint once as a matter of course within “(A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2).
Plaintiff indicates that he is amending “as a matter of course.” ECF No. 55 at 1 n.1. However, plaintiff already amended the complaint as a matter of course prior to screening by the court. See ECF No. 7; United States ex rel. D'Agostino v. EV3, Inc., 802 F.3d 188, 193 (1st Cir. 2015) (the time to amend begins when plaintiff files his complaint, “the word ‘within' merely specifies the point at which the right expires”). Since plaintiff has already amended once as a matter of course, he must first obtain defendants' consent or leave of the court before amending again. The second amended complaint will therefore be stricken from the record and the parties remain obligated to file a joint status report as previously ordered. See ECF No. 54.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to strike plaintiff's unauthorized second amended complaint (ECF No. 55) from the record.