Daniel J Tanner v. Vicki Hightower et al

Filing 86

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge John A. Kronstadt for Report and Recommendation (Issued) 84 . IT IS HEREBY ORDERED: (1) the Second Amended Complaint is dismissed with leave to a mend; and (2) within fourteen (14) days of the date of this Order, plaintiff shall (a) file a Third Amended Complaint curing the deficiencies identified in the Report and Recommendation if he wishes to proceed with this action and can cure such defic iencies;1 or (b) sign and return the Notice of Dismissal attached to the Report and Recommendation which will result in the voluntary dismissal of this action without prejudice if he no longer wishes to proceed with this action. See Order for details. (dml)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

DANIEL J. TANNER,

12

Plaintiff,

13
14

v.
VICKI HIGHTOWER, et al.,

15

ORDER ACCEPTING FINDINGS,
CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

Defendants.

16
17

Case No. EDCV 15-183 JAK(JC)

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended

18 Complaint, the Magistrate Judge’s September 14, 2015 Order to Show Cause and
19 October 5, 2015 Order Directing Supplemental Briefing (“Magistrate Judge’s
20 Orders”), the parties’ briefing relative to the Second Amended Complaint and in
21 response to the Magistrate Judge’s Orders, and all of the records herein, including
22 the December 13, 2016 Report and Recommendation of United States Magistrate
23 Judge (“Report and Recommendation”) and petitioner’s Objections to the Report
24 and Recommendation (“Objections”). The Court has further made a de novo
25 determination of those portions of the Report and Recommendation to which
26 objection is made. The Court concurs with and accepts the findings, conclusions,
27 and recommendations of the United States Magistrate Judge and overrules the
28 Objections.

1

IT IS HEREBY ORDERED: (1) the Second Amended Complaint is

2 dismissed with leave to amend; and (2) within fourteen (14) days of the date of this
3 Order, plaintiff shall (a) file a Third Amended Complaint curing the deficiencies
4 identified in the Report and Recommendation if he wishes to proceed with this
5 action and can cure such deficiencies;1 or (b) sign and return the Notice of
6 Dismissal attached to the Report and Recommendation which will result in the
7 voluntary dismissal of this action without prejudice if he no longer wishes to
8 proceed with this action.
9

Plaintiff is cautioned that, absent further Order of the Court, the failure

10 timely to file a Third Amended Complaint or a Notice of Dismissal will result
11 in the dismissal of this action with or without prejudice on the grounds set
12 forth in the Report and Recommendation and/or for failure diligently to
13 prosecute and/or for failure to comply with the Court’s Orders.
14
15
16
17
18
19
20
1

21
22
23
24
25
26
27
28

Any Third Amended Complaint must: (a) be labeled “Third Amended Complaint”; (b)
be complete in and of itself and not refer in any manner to the Original, the First Amended, or the
Second Amended Complaints – i.e., it must include all claims on which plaintiff seeks to proceed
(Local Rule 15-2); (c) contain a “short and plain” statement of the claim(s) for relief (Fed. R. Civ.
P. 8(a)); (d) make each allegation “simple, concise and direct” (Fed. R. Civ. P. 8(d)(1));
(e) present allegations in numbered paragraphs, “each limited as far as practicable to a single set
of circumstances” (Fed. R. Civ. P. 10(b)); (f) state each claim founded on a separate transaction or
occurrence in a separate count as needed for clarity (Fed. R. Civ. P. 10(b)); (g) set forth clearly
the sequence of events giving rise to the claim(s) for relief; (h) allege specifically what each
individual defendant did and how that individual’s conduct specifically violated plaintiff’s civil
rights; and (i) not change the nature of this suit by adding new, unrelated claims or defendants, cf.
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (civil rights plaintiff may not file “buckshot”
complaints – i.e., a pleading that alleges unrelated violations against different defendants).

2

1
2

IT IS FURTHER ORDERED that the Clerk serve copies of this Order and

3 the Report and Recommendation on plaintiff and counsel for defendants.

4

IT IS SO ORDERED

5
6 DATED: January 24, 2017

________________________________________

7

HONORABLE JOHN A. KRONSTADT
UNITED STATES DISTRICT JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3