Carroll v. Toele

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TREMAYNE CARROLL, Case No.: 3:20-cv-00079-BAS-RBM 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 vs. MOTION TO APPOINT COUNSEL AS MOOT [ECF No. 20] AND 14 C/O TOELE, et al., GRANTING LEAVE TO FILE 15 Defendants. THIRD AMENDED COMPLAINT 16 17 18 Pending before the Court is a Motion filed by Plaintiff Tremayne Carroll, requesting 19 “Appointment of Counsel and/or [to] Compel RJD/CDCR to Give Access to All Reports.” 20 See Pl.’s Mot., ECF No. 20 at 1. Carroll filed the motion pro se but has since retained 21 counsel, who has filed a Notice of Appearance and valid substitution on Plaintiff’s behalf. 22 (See ECF No. 23; Civ. L.R. 83.3(f)(2).) Plaintiff’s previously-filed motion is therefore 23 moot. 24 The Court further notes that Plaintiff has already amended his pleading twice: once 25 as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1) in response to this Court’s June 26 25, 2020 comprehensive initial screening Order, and again in response to its subsequent 27 Order overruling his objections. (See ECF Nos. 8, 12, 17, 18.) But because Plaintiff did 28 not yet have the benefit of counsel at the time he filed any of his pleadings, his currently 1 operative Second Amended Complaint has yet to be screened pursuant to 28 U.S.C. 2 ||§ 1915(e)(2) and § 1915A, and no Defendant has yet been served, the Court sua sponte 3 || GRANTS Plaintiff leave to file a Third Amended Complaint now that he is represented. 4 ||See Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so 5 requires.”); AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 6 2006) (noting that “Rule 15(a) is very liberal.”); see also Choquette v. Hammond, Civil 7 || Case No. 3:15-cv-05838-BHS-JRC, 2016 WL 11622971, at *2 (W.D. Wash. Oct. 6, 2016) 8 (deferring ruling on pending motion to dismiss and granting former pro se plaintiff the 9 “opportunity to file a[n amended] complaint with the assistance of counsel” retained after 10 defendants’ motion to dismiss was filed). 11 Conclusion and Order 12 Accordingly, Plaintiff's Motion to Appoint Counsel (ECF No. 20) is DENIED 13 |} without prejudice as moot, and Plaintiff is GRANTED leave to file a Third Amended 14 Complaint on or before January 25, 2021.! 15 IT ISSO ORDERED. 16 || Dated: December 11, 2020 17 Cyl. (Doha 18 on. Cynthia Bashant 19 United States District Judge 20 21 ||' Plaintiff is cautioned that should he fail to take this opportunity to amend, the Court will 99 screen his Second Amended Complaint (ECF No. 18) sua sponte pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, dismiss any and all insufficiently pleaded claims, and may deny 23 further leave to amend. Should Plaintiff elect to file a Third Amended Complaint, however, that pleading will supersede all previously-filed complaints and will become the operative complaint going forward. See Civ. L.R. 15.1(a); Hal Roach Studios, Inc. v. Richard Feiner 25 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 6 original.”). And while Plaintiff is now represented by counsel, he still proceeds in forma pauperis pursuant to 28 U.S.C. § 1915(a). See ECF No. 8. Therefore, should counsel seek 27 ||the assistance of the U.S. Marshal in effecting service upon the Defendants named as 0g parties in Plaintiff’s Third Amended Complaint, he must include a request for that service pursuant to Fed. R. Civ. P. 4(c)(3).