Armstrong v. Hedgpeth, et al.

Filing 42

ORDER for Clerk to Remove Complaint Filed on September 9, 2013 (Doc. 39 ) From This Action and Open New Case and ORDER for Clerk to File Complaint Lodged on September 10, 2013 (Doc. 40 ) as First Amended Complaint for This Action signed by Magistrate Judge Gary S. Austin on 11/20/2013. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRADY K. ARMSTRONG,

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Plaintiff,

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1:11-cv-00761-LJO-GSA-PC
ORDER FOR CLERK TO REMOVE
COMPLAINT FILED ON SEPTEMBER 9,
2013 FROM THIS ACTION AND OPEN
NEW CASE
(Doc. 39.)

vs.
A. HEDGPETH, et al.,

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Defendants.

ORDER FOR CLERK TO FILE
COMPLAINT LODGED ON SEPTEMBER
10, 2013, AS FIRST AMENDED
COMPLAINT FOR THIS ACTION
(Doc. 40.)

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I.

BACKGROUND

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Brady K. Armstrong (APlaintiff@) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on May 11, 2011.

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dismissed the Complaint for failure to state a claim, with leave to amend. (Doc. 23.)

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(Doc. 1.)

On February 15, 2013, the court

On September 9, 2013, Plaintiff submitted a complaint to the court which was filed by
the Clerk as the First Amended Complaint in this action. (Doc. 39.)

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On September 10, 2013, Plaintiff submitted a complaint to the court which was lodged

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by the Clerk as a proposed Second Amended Complaint in this action. (Doc. 40.)

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II.

DISCUSSION

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The court has reviewed the complaint filed on September 9, 2013 in this action (“Sept.

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9th Complaint”), and finds that it was erroneously filed in this action. Plaintiff alleges in the

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Sept. 9th Complaint that the sole defendant, Correctional Officer D. Hicks, retaliated against

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him in 2007 for filing an inmate appeal against defendant Hicks for fabricating a Rules

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Violation Report against Plaintiff. These allegations are entirely different from the allegations

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in the instant action, in which Plaintiff names several defendants, who are largely medical

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personnel, and alleges that they denied him adequate medical care after he suffered a stroke on

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January 3, 2010. While it is true that Plaintiff was ordered on February 15, 2013, to submit an

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amended complaint for this action, the Sept. 9th Complaint does not appear to be that amended

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complaint. Instead, the court finds evidence that the complaint lodged on September 10th

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(Sept. 10th Complaint) was meant to be the First Amended Complaint for this action.

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The Sept. 10th Complaint names many of the defendants previously named in this

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action -- Dr. L. Dileo, Nurse Rumsey, MTA Terronez, Dr. Spaeth, and Nurse Gomez – and,

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similar to this action, alleges that Plaintiff was denied adequate medical care by defendants

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after suffering a stroke on January 3, 2007. Plaintiff titled the Sept. 10th Complaint “First

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Amended Complaint” and makes reference to dismissal of the original Complaint on February

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15, 2013, with leave to amend, which occurred in this action. (Doc. 40 at 1:19-22, referring to

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Doc. 23.) The case number for this action, “11CV-00761-LJO-GSA-PC,” is clearly typewritten

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on the face of the Sept. 10th Complaint. Based on this evidence, the court finds that the Sept.

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10th Complaint serves as the First Amended Complaint for this action. Therefore, the Clerk

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shall be directed to file the Sept. 10th Complaint as the First Amended Complaint for this

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action.

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The court also finds that the Sept. 9th Complaint was erroneously filed in this action.

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Moreover, there is no evidence on the court’s record that the Sept. 9th Complaint belongs in

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any of Plaintiff’s other pending cases at this court. Therefore, the Clerk shall be directed to

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remove the Sept. 9th Complaint from this action and use it to open a new case.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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2013 from this action and use it to open a new case; and

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The Clerk of Court is directed to remove the complaint filed on September 9,

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The Clerk of Court is directed to file the complaint lodged on September 10,

2013, as the First Amended Complaint for this action.

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IT IS SO ORDERED.
Dated:

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November 20, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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