Ordway v. Miller
Filing
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ORDER DENYING 17 Petitioner's Motion to Lift Stay as Moot; ORDER GRANTING Petitioner's Motion to File AMENDED COMPLAINT, signed by Magistrate Judge Michael J. Seng on 11/21/2011. (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PATRICIA ANNE ORDWAY,
Petitioner,
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v.
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MILLER, Warden,
Respondent.
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1:11-cv-00616 LJO MJS HC
ORDER DENYING PETITIONER’S
MOTION TO LIFT STAY AS MOOT
ORDER GRANTING PETITIONER’S
MOTION TO FILE AMENDED COMPLAINT
[Doc. 17]
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Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas
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Corpus pursuant to 28 U.S.C. § 2254.
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I.
MOTION TO LIFT STAY
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On April 21, 2011, Petitioner filed the instant petition for writ of habeas corpus in this
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Court. (Pet., ECF No. 1.) On the same date Petitioner filed a motion to stay the proceedings.
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(Mot. to Stay, ECF No. 5.) On October 25 and 31, respectively, the Court ordered the
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respondent to respond to the Petition, and denied Petitioner’s motion to stay without prejudice.
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(ECF Nos. 13, 16.) As the Court has not ordered the case stayed, Petitioner’s motion to lift the
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stay is denied as MOOT.
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II.
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MOTION FILE AMENDED COMPLAINT
Rule 15(a) of the Federal Rules of Civil Procedure provides, in relevant part:
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(1) Amending as a Matter of Course.
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A party may amend its pleading once as a matter of course within:
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(A) 21 days after serving it, or
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(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.
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Presently, Respondent has yet to file a response. Accordingly, Petitioner may amend
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the petition as a matter of course and the motion to file a amended petition is granted. The
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Court shall consider the Amended Petition filed with the motion to lift the stay as the operative
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petition, and Respondent shall respond to the claims set forth therein.
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Petitioner is advised that an amended petition supercedes the original petition, Forsyth
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v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th
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Cir. 1987), and must be "complete in itself without reference to the prior or superceded
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pleading." Local Rule 220. Accordingly, Petitioner's last filed amended petition must contain
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all the claims Petitioner wishes to present before the Court. Plaintiff is warned that "[a]ll causes
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of action alleged in an original complaint which are not alleged in an amended complaint are
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waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th
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Cir. 1981)).
ORDER
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Accordingly, IT IS HEREBY ORDERED that:
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1. Petitioner's motion for stay and abeyance is DENIED; and
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2. Petitioner’s motion to file a amended petition is GRANTED. The Court shall consider
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the amended petition filed with the motion to lift the stay as the operative petition.
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IT IS SO ORDERED.
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Dated:
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November 21, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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