Filed: Apr. 07, 2016
Latest Update: Apr. 07, 2016
Summary: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS, AND GRANTING PLAINTIFF LEAVE TO AMEND THE CLAIM FOR RELIEF [ECF Nos. 28, 37, 38, 39] ANTHONY W. ISHII , Senior District Judge . Plaintiff Albert J. Hamilton is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. 1983. Pursuant to 28 U.S.C. 636(c), Plaintiff consented to the jurisdiction of the United States Magistrate Judge on May 28, 201
Summary: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS, AND GRANTING PLAINTIFF LEAVE TO AMEND THE CLAIM FOR RELIEF [ECF Nos. 28, 37, 38, 39] ANTHONY W. ISHII , Senior District Judge . Plaintiff Albert J. Hamilton is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. 1983. Pursuant to 28 U.S.C. 636(c), Plaintiff consented to the jurisdiction of the United States Magistrate Judge on May 28, 2015..
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ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS, AND GRANTING PLAINTIFF LEAVE TO AMEND THE CLAIM FOR RELIEF
[ECF Nos. 28, 37, 38, 39]
ANTHONY W. ISHII, Senior District Judge.
Plaintiff Albert J. Hamilton is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of the United States Magistrate Judge on May 28, 2015. Local Rule 302.
The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On February 26, 2016, the Magistrate Judge filed Findings and Recommendations recommending that Defendant's motion to dismiss be granted as to Plaintiff's prayer for relief but denied in all other respects. The Findings and Recommendations were served on the parties and contained notice that objections were to be filed within thirty days. Defendant filed no objections. Plaintiff filed objections on March 11, 2016.
In his objections, Plaintiff seeks to amend the relief as seeking monetary damages in the amount of $10,000.00. (ECF No. 39, Objections at 3.) However, Plaintiff may not amend the complaint by piecemeal presentation of his prayer for relief by way of his objections. Rather, Plaintiff must submit an amended complaint which is complete within itself. See Local Rule 220 (amended complaint must be complete in itself without reference to any prior pleading). However, Plaintiff is granted leave to amend the complaint as to prayer for relief only. Plaintiff may not plead new claims and any improper amendment as to the claims will result in the offending portions of the pleading being stricken from the record. See, e.g., DeLeon v. Wells Fargo Bank, N.A., No. 10-cv-01390-LHK, 2010 WL 4285006, *3 (N.D. Cal. Oct. 22, 2010) ("In cases like this one . . . where leave to amend is given to cure deficiencies in certain specified claims, courts have agreed that new claims alleged for the first time in the amended pleading should be dismissed or stricken."); see also Kennedy v. Full Tilt Poker, No. CV 09-07964 MMM (AGRx), 2010 WL 3984749, *1 (C.D. Cal. Oct. 12, 2010) (noting that the court had stricken a third amended complaint because plaintiffs' new claims and the addition of new defendants "exceeded the authorization to amend the court granted.")
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed on February 26, 2016, are adopted in full; and
2. Defendant's motion to dismiss for failure to exhaustion the administrative remedies is DENIED;
3. Defendant's motion to dismiss Plaintiff's prayer for relief is GRANTED;
4. The Clerk of Court is directed to send Plaintiff a blank civil rights amended complaint form;
5. Within thirty (30) days from the date of service of this order Plaintiff shall file an amended complaint; and
6. Failure to comply with this order will result in dismissal of the action for failure to comply with a court order and failure to set forth a claim for relief. See Fed. R. Civ. P. 8(a)(3) (a complaint must include "a demand for the relief sought, which may include relief in the alternative or different types of relief).
IT IS SO ORDERED.
