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 The remaining defendants had previously filed an answer to the original complaint, but had

mistakenly labeled their answer, “Defendants’ answer to first amended complaint.” See Docket

numbers 5, 15.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DEMIAN TREVOR O’KEEFFE,

Plaintiff, NO. CIV. S-04-1695 WBS GGH PS

v.

EDWARD S. ALAMEIDA, et al.,

Defendants. ORDER AND FINDINGS AND 

RECOMMENDATIONS

 /

By order filed August 30, 2005, plaintiff was informed of the pleading defects in

regard to defendant Alameida and directed to file an amended complaint which linked this

defendant to his claims for monetary damages. Because the complaint sought both money

damages and injunctive relief, the court also substituted the current director of the Department of

Corrections, Jeanne Woodford, as a defendant for prospective injunctive relief. The court stated

that upon filing an amended complaint, further orders for service of process upon defendant

Alameida and/or defendant Woodford would issue.1

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On September 16, 2005, plaintiff filed an amended complaint which includes all

the original defendants but which is quite different from his original complaint as to the

substance of the allegations against all defendants. Plaintiff has failed to comply with the August

30th order which directed him to amend his complaint as to Alameida only. Further, plaintiff has

not cured the original pleading defect of failing to link Alameida to the claims. As to Alameida,

plaintiff alleges only that this defendant “carried ultimate responsibility over the formulation and

implementation of the California Department of Correction’s rules, practices, regulations and

procedures concerning Parole and Parole Revocation.” Am. Compl. at 20:15-18.

Therefore, the entire amended complaint will be stricken, and this action will

proceed on the original complaint. Plaintiff will not be given another opportunity to state a claim

for relief against Alameida, and this defendant will be dismissed.

Plaintiff also filed a “motion in opposition to dismissal of defendant Alameida

and joining C.D.C. Director Woodford” concurrently with his amended complaint. This filing,

along with the prayer for relief in the amended complaint which has eliminated all claims for

injunctive relief, makes clear that plaintiff does not seek to join Woodford in his lawsuit. 

Therefore, plaintiff’s September 16, 2005 filing will be construed as a request to voluntarily

dismiss this defendant, and as a request to eliminate any claim for injunctive relief. 

Accordingly, IT IS ORDERED that:

1. The amended complaint, filed September 16, 2005, is stricken.

2. Plaintiff’s motion, filed September 16, 2005, construed as a request to

eliminate his claim for injunctive relief and as a request to dismiss defendant Woodford, is

granted.

For the reasons stated in this court’s August 30, 2005 order, IT IS

RECOMMENDED that defendant Alameida be dismissed from this action. These findings and

recommendations are submitted to the United States District Judge assigned to the case, pursuant

to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty days after being served with these

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findings and recommendations, plaintiff may file written objections with the court. The

document should be captioned “Objections to Magistrate Judge’s Findings and

Recommendations.” Plaintiff is advised that failure to file objections 

within the specified time may waive the right to appeal the District Court’s order. 

DATED: 10/12/05

/s/ Gregory G. Hollows

 

UNITED STATES MAGISTRATE JUDGE

GGH:076

O’Keeffe1695.fr

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