Saenz v. Spearman, et al.

Filing 13

ORDER RE MOTIONS, signed by Magistrate Judge Gary S. Austin on 12/16/09: Plaintiff's Motion for Reconsideration 10 and Motion for Stay 11 are DENIED; Plaintiff is GRANTED thirty days from the date of service of this order in which to file a Second Amended Complaint in accordance with the Order of October 1, 2009; Second Amended Complaint ddl EXTENDED to 1/19/2010. (Attachments: # 1 Amended Complaint (blank form)) (Hellings, J)

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 1 Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the exercise of magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1). On October 1, 2009, an order was entered, finding that the August 12, 2009, first amended complaint stated a claim against Defendant Reeves for retaliating against Plaintiff's exercise of his First Amendment rights, but failed to state a claim against the remaining defendants. Plaintiff was advised of the deficiencies in his first amended complaint, and provided an opportunity to correct those deficiencies. Plaintiff was specifically advised that if he chooses to proceed on the claims against Defendant Reeves only, he should notify the court that he wishes to proceed on the claims against Defendant Reeves. Plaintiff was also advised that if he chose to proceed on the claims against Reeves in the first amended complaint, the court M. SPEARMAN, et al., Defendants. vs. ROBERT GONZALES SAENZ, Plaintiff, 1: 09 CV 00557 YNP GSA (PC) ORDER RE MOTIONS (DOCS 10,11) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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would recommend dismissal of the remaining claims. Plaintiff was advised that should he desire to correct the deficiencies as to the remaining defendants, he could file a second amended complaint. In response, Plaintiff filed a motion for reconsideration. Specifically, Plaintiff seeks reconsideration of the October 1st order by a District Judge. Plaintiff disagrees with the analysis that the first amended complaint fails to state a claim against the remaining defendants. Plaintiff also filed a request for a stay of this action pending the resolution of the motion for reconsideration. Plaintiff also filed a document titled as a notice to proceed on cognizable claims. In this document, Plaintiff indicates his confusion regarding how to proceed. As to Plaintiff's motion for reconsideration, Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1). That subsection provides that the magistrate judge "may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment. . . . " The Magistrate Judge in consent cases sits as the District Judge, and therefore hears and rules on all motions brought in the case. As to the motion for reconsideration, Plaintiff is advised that he has two options - file a second amended complaint or proceed on the claims against Defendant Reeves only. If Plaintiff disagrees with the analysis in the October 1st order, he may file a second amended complaint. Should Plaintiff desire to proceed on the first amended complaint, he will be provided service documents to initiate service upon Defendant Reeves, and the court will dismiss the remaining defendants and claims. The dismissal of the first amended complaint is without prejudice to the filing of a second amended complaint. If Plaintiff seeks to proceed against any other defendant than Reeves, he should file a second amended complaint. If Plaintiff fails to file a second amended complaint, this action will proceed on the first amended complaint as to Defendant Reeves, and the court will dismiss the remaining defendants. The October 1, 2009, order is not a final order, as Plaintiff is granted leave to file a second amended complaint. The motion for

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reconsideration should therefore be denied. As to Plaintiff's motion for a stay and notice to proceed, the court finds no ground for a stay. Plaintiff will be granted thirty days in which to file a second amended complaint, or notify the court of his intention to proceed on the first amended complaint against Defendant Reeves only. At this stage of the litigation, these are Plaintiff's only options. Should Plaintiff fail to file a second amended complaint, this action will proceed on the first amended complaint against Defendant Reeves, and the court will dismiss the remaining defendants and claims. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's motion for reconsideration is denied. 2. Plaintiff's motion for a stay is denied. 3. Plaintiff is granted thirty days from the date of service of this order in which to file a second amended complaint in accordance with the order of October 1, 2009.

IT IS SO ORDERED. Dated: 6i0kij

December 16, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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