(PC) Valdivia v. Vasquez et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
JOHN VALDIVIA,
Plaintiff,
v.
MIRIAM VASQUEZ, et al.,
Defendants.
Case No.: 1:24-cv-00597-SKO
ORDER CONSTRUING LODGED FIRST
AMENDED COMPLAINT TO BE MOTION
TO AMEND COMPLAINT AND
PROPOSED FIRST AMENDED
COMPLAINT
(Doc. 20)
ORDER TERMINATING MOTION TO
DISMISS FILED AUGUST 15, 2025
(Doc. 15)
ORDER DIRECTING PLAINTIFF TO FILE
OPPOSITION OR STATEMENT OF NON-
OPPOSITION TO MOTION TO DISMISS
FILED NOVEMBER 5, 2025, WITHIN 30
DAYS
Plaintiff John Valdivia, a civil detainee, is appearing pro se and in forma pauperis in this
civil rights action. This action proceeds on Plaintiff’s constitutional claims against Defendant
Vasquez.
I. RELEVANT BACKGROUND
On August 15, 2025, Defendant filed a Notice of Appearance (Doc. 11), Defendant
Miriam Vasquez’s Notice of Motion and Motion to Dismiss (Doc. 12), Defendant Miriam
Case 1:24-cv-00597-SKO Document 22 Filed 11/10/25 Page 1 of 4

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Vasquez’s Memorandum of Points and Authorities in Support of Motion to Dismiss (Doc. 13), a
second or duplicate Notice of Appearance (Doc. 14), and a second filing titled Defendant Miriam
Vasquez’s Notice of Motion and Motion to Dismiss (Doc. 15).
On August 20, 2025, Defendant filed Defendant Miriam Vasquez’s Notice of Errata
Regarding Motion to Dismiss. (Doc. 16.)
In response to Defendant’s notice of errata, the Court entered a minute order on August
21, 2025. (See Docket Entry No. 17.) At Defendant’s request, the Court struck docket entry
numbers 12 and 13 as filed in error. (Id.) The Court also directed Plaintiff “to file any opposition
or statement of non-opposition” to the motion to dismiss “within 21 days of the date of this
minute order.” (Id.)
On September 19, 2025, when Plaintiff failed to respond within 21 days, the Court issued
its Order to Show Cause (OSC) in Writing Why Sanctions Should Not Be Imposed for Plaintiff’s
Failure to File an Opposition or Statement of Non-Opposition. (Doc. 18.) Plaintiff was directed to
respond in writing explaining why sanctions should not be imposed, or, in the alternative, to file
an opposition or statement of non-opposition to Defendant’s motion within 14 days. (Id. at 3.)
On October 8, 2025, Defendant filed Defendant’s Notice of Plaintiff’s Non-Opposition to
Defendant’s Motion to Dismiss. (Doc. 19.) On October 20, 2025, the Court lodged Plaintiff’s
first amended complaint. (Doc. 20.)
On November 5, 2025, Defendant filed a second motion to dismiss, addressing the
substance of Plaintiff’s first amended complaint. (Doc. 21.)
As discussed below, the Court will construe Plaintiff’s lodged first amended complaint to
include a motion to amend and grant the motion. It will also terminate the original motion to
dismiss filed by Defendant, and direct Plaintiff to file either an opposition or statement of non-
opposition to the second motion to dismiss filed by Defendant on November 5, 2025.
II. DISCUSSION
Plaintiff’s Lodged First Amended Complaint Will Be Filed
As noted above, Plaintiff submitted a first amended complaint, presumably in response to
the Court’s OSC and Defendant’s notice that he failed to file an opposition to the August 15,
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2025, motion to dismiss; the amended complaint was lodged, not filed, with the Court. (See Doc.
20.)
Plaintiff’s October 20, 2025, submission of an amended complaint is procedurally
deficient because it did not include a motion seeking leave to amend. Such a motion is required
because Defendant had already appeared in the action. See Fed. R. Civ. P. 15(a)(2) (“In all other
cases, a party may amend its pleading only with the opposing party's written consent or the court's
leave. The court should freely give leave when justice so requires”); see also Local Rule 220. The
Court will nonetheless construe Plaintiff’s lodged first amended complaint to include a motion for
leave to amend, and, to that extent, will grant the motion and direct the Clerk to file the lodged
complaint.
Defendant’s Original Motion to Dismiss Will Be Terminated as Moot
Defendant filed a second motion to dismiss following Plaintiff’s October 20, 2025,
submission, addressing the merits of Plaintiff’s lodged amended complaint. Accordingly, the
Court will terminate the original motion to dismiss, filed August 15, 2025, as moot.1 The Court
will also construe Defendant’s second motion as an indication that Defendant is willing to
proceed without the Court screening the amended complaint.2
Plaintiff Shall File Only an Opposition or Statement of Non-Opposition to
Defendant’s November 5, 2025, Motion to Dismiss Within 30 Days
Plaintiff shall be provided 30 days from the date of service of this order within which to
file either an opposition or a statement of non-opposition to Defendant’s motion to dismiss filed
November 5, 2025. Plaintiff may not file another amended complaint in response to Defendant’s
pending motion.
Pursuant to Local Rule 230(l), Defendant will have 14 days from the date Plaintiff’s
opposition or statement of non-opposition is filed within which to file any reply. No further briefs
1 See, e.g., Williams v. Jalijali, No. 2:22-cv-00605-JDP (PC), 2023 WL 4743019, at *1, 3 (E.D. Cal. July
25, 2023) (granting Plaintiff leave to amend and denying Defendant LaCroix’s motion to dismiss as moot).
2 See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (the legal standard for screening and for
12(b)(6) motions is the same). As a result, Defendant’s challenges to the claims asserted in Plaintiff’s first
amended complaint would be subject to the same scrutiny those claims would undergo at screening.
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will be entertained by the Court. Once briefing has concluded and the motion is deemed
submitted, the undersigned will issue findings and recommendations.
III. CONCLUSION AND ORDER
Based upon the foregoing, this Court HEREBY ORDERS:
1. The first amended complaint lodged with the Court on October 20, 2025, is construed
to be a motion for leave to amend and a proposed first amended complaint;
2. Plaintiff’s motion for leave to amend is GRANTED;
3. The Clerk of the Court is DIRECTED to file the lodged first amended complaint
(Doc. 20) on the docket;
4. The Clerk of the Court is DIRECTED to terminate Defendant’s motion to dismiss
filed August 15, 2025 (Doc. 15) as moot;
5. Within 30 days of the date of service of this order, Plaintiff SHALL file either an
opposition or a statement of non-opposition only to Defendant’s motion to dismiss
filed November 5, 2025 (Doc. 21). Plaintiff may not file another amended complaint
in response to Defendant’s pending motion; and
6. Plaintiff is ADVISED that any failure to file either an opposition or a statement of
non-opposition within 30 days, as ordered above, will result in the Defendant’s
November 5, 2025, motion being deemed unopposed.
IT IS SO ORDERED.
Dated: November 7, 2025 /s/ Sheila K. Oberto .
UNITED STATES MAGISTRATE JUDGE
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