Aguilar v. Lewis et al

Filing 17

ORDER that the 13 Report and Recommendation of the Magistrate Judge is accepted. It is further ordered that the 12 First Amended Complaint is dismissed for failure to state a claim upon which relief can be granted. It is further ordered granting the 14 Motion to Amend Complaint. The Clerk is directed to file the 15 Second Amended Complaint, subject to further screening by the Court. Signed by Judge Neil V Wake on 09/28/09. (ESL)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. Lewis, et al., Defendants. Alex Aguilar, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) No. CV 09-1198 PHX-NVW (JRI) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Pending before the court is the Report and Recommendation ("R&R") of Magistrate Judge Irwin (Doc. # 13) recommending that the First Amended Complaint be dismissed with leave to file a further amended complaint. The Magistrate Judge advised the parties that they had ten days to file objections to the R&R. (R&R at 4 (citing 28 U.S.C. § 636(b)). No objections were filed; however, on September 24, 2009, Plaintiff filed a Motion to Amend Complaint and lodged a proposed Second Amended Complaint. (Docs. # 14, 15.) The court has reviewed the R&R and finds that it is well taken. The court will accept the R&R and dismiss the First Amended Complaint with leave to file the Second Amended Complaint, subject to further screening by the Court. (Doc. # 15.) See 28 U.S.C. § 636(b)(1) (stating that the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate"). IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc. #13) is accepted.

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IT IS FURTHER ORDERED that the First Amended Complaint (Doc. # 12) is dismissed for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED granting the Motion to Amend Complaint (Doc. 14). The Clerk is directed to file the Second Amended Complaint (Doc. #15), subject to further screening by the Court. DATED this 28th day of September, 2009.

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