(PC) Lipsey v. Seitz

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA CHRISTOPHER LIPSEY, JR., Case No.: 1:18-cv-00766-AWI-SKO (PC) 12 Plaintiff, SECOND ORDER REQUIRING PLAINTIFF TO FILE THIRD AMENDED COMPLAINT 13 v. OR NOTIFY THE COURT OF HIS DESIRE TO PROCEED ONLY ON CLAIM FOUND B. SEITZ, et al., COGNIZABLE 15 Defendants. 21-DAY DEADLINE 17 Plaintiff Christopher Lipsey, Jr., asserts two causes of action in his second amended complaint. (Doc. 21) In Claim I, Plaintiff alleges that Defendant Seitz retaliated against him in violation of the First Amendment and the California Bane Act. (Id. at 4.) In Claim II, Plaintiff alleges that Defendants Chappuis, Hunrah, Kernan, Quam, and Wannamaker denied him access to the courts. (Id. at 5.)

22 In its screening order, the Court found that Claim I is cognizable but Claim II is not. (Doc.

23 23). Accordingly, the Court ordered Plaintiff to either file a third amended complaint curing the deficiencies in his pleading OR, in the alternative, notify the Court that he wishes to proceed only on Claim I against Seitz and to dismiss the remaining claim and defendants. (Id. at 7-8.)

26 On December 27, 2019, Plaintiff filed a notice stating that he wishes to proceed on the retaliation claim (Claim I) under the First Amendment against Seitz, and under the Bane Act against both Seitz and Kernan. (Doc. 24). However, as stated above, Plaintiff named only Seitz as a defendant in Claim I of his second amended complaint; and, the Court screened the complaint according to the facts alleged therein. Therefore, if Plaintiff wishes to add a new defendant to his retaliation claim, he must name the defendant and state facts showing that he is liable for the alleged civil rights violation(s). See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002) (complaint “must … give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests”) (internal quotation marks and citation omitted).

7 Based on the foregoing, the Court ORDERS: 8 1. Within 21 days from the date of service of this order, Plaintiff SHALL file one of the 9 following two items: 10 a. a third amended complaint curing the deficiencies identified in the Court’s 11 screening order, (Doc. 23), OR 12 b. a notice that he does not wish to file a third amended complaint and instead 13 wishes to proceed only on his retaliation claim (Claim I) against Defendant 14 Seitz and to dismiss his remaining claims and defendants.

15 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form.

16 If Plaintiff fails to comply with this order, the Court will recommend that this action proceed only on the claim found cognizable and that all other claims and defendants be dismissed with prejudice.

IT IS SO ORDERED.

Sheila K. Oberto Dated: January 10, 2020 /s/ .

UNITED STATES MAGISTRATE JUDGE