Baker v. High Desert State Prison, Warden et al
Filing
38
ORDER signed by Magistrate Judge Edmund F. Brennan on 6/7/2011 ORDERING that pltf's 28 motion for default judgment is DENIED; and pltf's 34 , 37 motions to add dft's name and to amend the cmplt are DENIED w/out prejudice; w/in 30 days, pltf may file an amended cmplt that is complete in itself. (Yin, K)
<![CDATA[
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
JERRY W. BAKER,
11
Plaintiff,
12
vs.
13
No. CIV S-10-0640 EFB P
T. FELKER, et al.,
14
Defendants.
/
15
16
ORDER
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
17
U.S.C. § 1983. On December 22, 2010, the court ordered the U.S. Marshal to serve the amended
18
complaint on defendants Felker and Wright. Dckt. No. 26. On March 4, 2011, plaintiff filed a
19
motion for default judgment. Dckt. No. 28. Waivers of service for defendants Felker and
20
Wright were executed on March 24 and April 4, 2011. Dckt. Nos. 29, 32. The requests for these
21
waivers were sent on February 8, 2011. See Dckt. Nos. 29, 32. The defendants filed their
22
answer on April 8, 2011. Dckt. No. 31.
23
If a defendant has timely waived service, he or she must serve a responsive pleading
24
within 60 days after the request for waiver was sent. Fed. R. Civ. P. 4(d)(3). Defendants filed
25
their answer 56 days after the requests for waivers were sent. Therefore, defendants timely
26
responded to the complaint and plaintiff’s motion for default judgment is denied.
1
1
On April 15, 2011, plaintiff requested that his complaint be amended to name another
2
defendant, J. Jesup, a counselor at San Quentin Prison. On April 27, 2011, plaintiff filed another
3
motion to amend the complaint and add defendants, stating that he would like to include appeals
4
coordinators L. Rohas and A. Kemp and classification staff representative Nergenah as
5
defendants. The court previously found that, for the purposes of initial screening, plaintiff’s
6
complaint stated a cognizable claim against the counselor and the appeals coordinator.
7
Plaintiff’s original complaint did not contain claims against a classification staff representative,
8
but this defect could be cured in an amended complaint.
9
However, in order to proceed against these defendants, plaintiff must comply with Local
10
Rule 220 and file an amended complaint that is complete in itself without reference to his first
11
complaint. See L.R. 220 (“Unless prior approval to the contrary is obtained from the Court,
12
every pleading to which an amendment or supplement is permitted as a matter of right or has
13
been allowed by court order shall be retyped and filed so that it is complete in itself without
14
reference to the prior or superseded pleading. No pleading shall be deemed amended or
15
supplemented until this Rule has been complied with. All changed pleadings shall contain copies
16
of all exhibits referred to in the changed pleading.”).
17
Accordingly, it is hereby ORDERED:
18
1. Plaintiff’s motion for default judgment is denied; and
19
2. Plaintiff’s motions to add a defendant’s name and to amend the complaint are denied
20
without prejudice, as plaintiff has not yet filed an amended complaint that complies with L.R.
21
220. Within 30 days of the date of this order, plaintiff may file an amended complaint that is
22
complete in itself containing the names of all defendants in this action as well as factual
23
allegations against them.
24
DATED: June 7, 2011.
25
26
2
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
