(PC) Birrell v. DiTomas

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA DAVID WESLEY BIRRELL, aka Bella- No. 2:22-CV-1834-KJM-DMC-P Christina Birrell, Plaintiff, 13 ORDER v. MICHELLE DiTOMAS, Defendant.

18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s first amended complaint. See ECF No. 27.

21 The Federal Rules of Civil Procedure provide that a party may amend his or her pleading once as a matter of course within 21 days of serving the pleading or, if the pleading is one to which a responsive pleading is required, within 21 days after service of the responsive pleading, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service of a motion under Rule 12(b), (e), or (f) of the rules, whichever time is earlier, see Fed. R. Civ. P. 15(a)(1)(B). In all other situations, a party’s pleadings may only be amended upon leave of court or stipulation of all the parties. See Fed. R. Civ. P. 15(a)(2).

28 / / / 1 Here, Defendant filed a motion to dismiss under Federal Rule of Civil Procedure | 12(b)(6) on June 30, 2023. See ECF No. 19. Thus, any amendment-as-of-rght was due within || 21 days of this date. See Fed. R. Civ. P. 15(1)(1)(B). Plaintiff's first amended complaint was || filed on January 16, 2024 — more than 21 days after June 30, 2023. See ECF No. 27.

5 Where, as here, a party files an amended complaint without the right to do so or || leave of court having been previously granted, it is properly stricken by the Court. See, e.g., || Hardin v. Wal-Mart Stores, Inc., 813 F. Supp. 2d 1167, 1181 (E.D. Cal. 2011) (striking fourth || amended complaint: “If an amended pleading cannot be made as of right and is filed without || leave of court or consent of the opposing party, the amended pleading is a nullity and without | legal effect.”); Sexton v. Spirit Airlines, Inc., Case No. 2:21-cv-00898-TLN-AC, 2022 WL 11 | 976914 (E.D. Cal. March 31, 2022) (striking amended complaint); Guthrie v. Hurwitz, Case No. | 1:18-cv-00282-AWI-BAM, 2018 WL 4005261, at *1 (E.D. Cal. Aug. 20, 2018) (striking || amended complaint).

14 Defendant’s motion to dismiss Plaintiffs original complaint will be addressed by || separate findings and recommendations.

16 Accordingly, IT IS HEREBY ORDERED that Plaintiffs first amended complaint, || ECF NO. 27, is STRICKEN. This Order is without prejudice to any further effort by Plaintiff to || properly seek leave of Court to file the subject First Amended Complaint.

20 | Dated: January 31, 2024 Co 21 DENNIS M. COTA 02 UNITED STATES MAGISTRATE JUDGE