1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PHILLIP MICHAEL OKONGO, Case No. 23-cv-03576-EMC 24-cv-0105-EMC 8 Plaintiffs, ORDER GRANTING LEAVE TO AMEND 9 v. IN CASE NO. 23-CV-3576, AND DISMISSING CASE NO. 24-CV-0105 AS 10 SANTA CLARA COUNTY SHERIFFS OPENED IN ERROR OFFICE, et al., 11 Defendants. 12 13 Plaintiff Phillip Okongo filed a civil rights action complaining of conditions at Santa Clara 14 County Jail, where he is incarcerated. See Docket No. 1, Case No. 23-cv-3576. The complaint 15 was reviewed by United States Magistrate Judge Laurel Beeler pursuant to 28 U.S.C. § 1915A. 16 Judge Beeler identified deficiencies in the complaint, and instructed Mr. Okongo to amend in 17 order to correct those deficiencies. See Docket No. 5, Case No. 23-cv-3576. 18 Mr. Okongo filed a document entitled “Complaint.” Docket No. 1, Case No. 24-cv-0105. 19 Because nothing on the face of the document suggested it was intended as an amended complaint 20 in Case No. 23-cv-3576, the Clerk of the Court opened a new action. 21 Mr. Okongo subsequently filed an amended complaint in Case No. 23-cv-3576, and a 22 “motion for supplemental jurisdiction” in Case No. 24-cv-0105. Both actions were reassigned to 23 the undersigned. 24 Upon a review of the filings in both actions, they concern the same incidents and are 25 brought against the same defendants. The Court does not believe that Mr. Okongo intended to file 26 a “malicious” action in filing the second case. See

(g) (explaining that prisoners 27 incur a “strike” when they file a malicious action, and that accumulating three strikes bars

, 1105 n.2 (9th Cir. 1995) (noting that an in forma pauperis complaint that “merely 2 repeats pending or previously litigated claims” is malicious under the PLRA). Rather, it appears 3 that Mr. Okongo intended to file an amended complaint in the first case as directed by Judge 4 Beeler, but because of his innocent mistake in not labeling the amended complaint as such, a 5 second action was erroneously opened. 6 Accordingly, Case No. 24-cv-0105 is DISMISSED as opened in error. No filing fee is due 7 for this erroneously opened case, so the in forma pauperis application that Mr. Okongo filed in 8 Case No. 24-cv-0105 is DENIED as moot. The Clerk shall terminate all pending motions in Case 9 No. 24-cv-0105, see Docket Nos. 4, 9, 12, and close the file. 10 Mr. Okongo’s filings suggest that he wishes to add to the claims pending before the Court. 11 The Court sua sponte grants Mr. Okongo an extension of time to amend the pleadings in Case No. 12 23-cv-3576 to set forth all of his claims. 13 Mr. Okongo must file an amended complaint in Case No. 23-cv-3576 no later than 14 November 1, 2024. To avoid the confusion which led to a second action being opened, Mr. 15 Okongo must write the caption and civil case number used in this order (Case No. 23-cv-3576- 16 EMC) and the words AMENDED COMPLAINT on the first page. Mr. Okongo is cautioned that 17 his amended complaint must be a complete statement of his claims. See Lacey v. Maricopa 18 County,

(9th Cir. 2012) (en banc) (“For claims dismissed with prejudice and 19 without leave to amend, we will not require that they be repled in a subsequent amended 20 complaint to preserve them for appeal. But for any claims voluntarily dismissed, we will consider 21 those claims to be waived if not repled.”) If Mr. Okongo does not file an amended complaint by 22 the deadline, the Court will conclude that he wishes to move forward only as to the claims raised 23 in the amended complaint currently pending at Docket No. 15, and will screen that pleading 24 accordingly. 25 This order closes Case No. 24-cv-0105, and disposes of Docket Nos. 4, 9, and 12 in that 26 action. 27 1 IT IS SO ORDERED. 2 3 Dated: October 24, 2024 4 5 ______________________________________ EDWARD M. CHEN 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27