Burgess v. Raya, et al.

Filing 26

ORDER DISREGARDING 23 Defendants' Request for a Screening Order and ORDER GRANTING 24 Plaintiff's Motion to Withdraw the Second Amended Complaint and Construing the Corrected Second Amended Complaint (Doc. 25 ) as the Third Amended Complaint signed by Magistrate Judge Jennifer L. Thurston on 7/15/2013. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DWAYNE L. BURGESS,

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Plaintiff,

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v.

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J. RAYA, et al.,

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Defendants.

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Case No.: 1:11-cv-0921 –AWI – JLT (PC)
ORDER DISREGARDING DEFENDANTS’
REQUEST FOR A SCREENING ORDER
(Doc. 23)
ORDER GRANTING PLAINTIFF’S MOTION TO
WITHDRAW THE SECOND AMENDED
COMPLAINT AND CONSTRUING THE
CORRECTED SECOND AMENDED COMPLAINT
AS THE THIRD AMENDED COMPLAINT
(Docs. 24 and 25)

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Plaintiff Dwayne L. Burgess (“Plaintiff”) is a state prisoner proceeding pro se in a civil rights

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action pursuant to 42 U.S.C. § 1983. Before the Court are Defendants’ request for a screening order,

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(Doc. 23), and Plaintiff’s letter1 to the court, (Doc. 24), which the Court construes as a “motion to

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withdraw the second amended complaint.” Having read and considered the pleadings, and for the

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following reasons, the Court DENIES Defendants’ request for a screening order and GRANTS

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Plaintiff’s motion to withdraw the second amended complaint.

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I.

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Request for a Screening Order
Defendants request that the Court screen Plaintiff’s second amended complaint. Defendants

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All future filings SHALL be styled as pleadings. All future letters SHALL BE STRICKEN.

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indicate that the PLRA requires the Court to screen Plaintiff’s complaint “as soon as practicable after

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docketing.” (Doc. 23 at 2)(citing 28 U.S.C. § 1915A(a). The Court is well aware of its obligation to

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screen Plaintiff’s amended complaint under the PLRA, as demonstrated by its previous screening

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orders in this case. (Docs. 8 and 14). The Court will screen Plaintiff’s amended complaint in due

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course.

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On two separate occasions, the Court advised Defendants that they need not file a responsive

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pleading until after – and only if – the Court finds that Plaintiff states a cognizable claim. (Docs. 5,

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13). The Court presumes counsel is being overly cautious in repeatedly filing motions despite the

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need for the Court to screen any amended complaint. However, given the Court’s prior orders, the

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present filing is clearly unwarranted and unnecessary and an errant effort which wastes this Court’s

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limited resources in having to respond to it. Therefore, Defendants’ request for a screening order is

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DISREGARDED.

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II.

Plaintiff’s Motion to Withdraw the Second Amended Complaint

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Plaintiff submits a letter to the Court requesting that the Court accept the “revised second

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amended complaint” (Doc. 25) in lieu of the previously filed second amended complaint (Doc. 21).

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(Doc. 24 at 2). Plaintiff reports that on June 18, 2013, he “inadvertently mailed an incomplete draft”

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of his second amended complaint to the Court. Id. Plaintiff seemingly noticed his error and re-

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submitted the complaint on two days later. Id. While the present motion to withdraw was not filed

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with the Court until July 12, 2013, Plaintiff indicates that the United States Postal Service returned the

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June 20, 2013 filing to him on July 9, 2013 as undeliverable. Id. at 1. Plaintiff claims to have

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addressed the envelope to the Court in “the same exact way it had been previously sent” and thus

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could reasonably assume that it would arrive at the Court on time. (Doc. 24 at 1). Thus, it appears that

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Plaintiff exercised due diligence in seeking to correct his inadvertent filing.

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Therefore, the Court GRANTS Plaintiff’s motion to withdraw the second amended complaint.

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(Doc. 23). The lodged corrected second amended complaint (Doc. 25) SHALL BE CONSTRUED as

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a “third amended complaint” and SHALL be the operative complaint in this matter.

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ORDER
Accordingly, and for the aforementioned reasons, the Court ORDERS that:
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Defendants’ Request for a Screening Order (Doc. 23) is DIREGARDED. Defendants

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SHALL NOT file any further responsive pleadings in this matter until after – and only if - the Court

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issues a screening order indicating that Plaintiff has stated a cognizable claim;

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The Court GRANTS Plaintiff’s motion to withdraw the second amended complaint.

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(Doc. 23); and
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The lodged corrected second amended complaint (Doc. 25) SHALL BE

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CONSTRUED as the “third amended complaint” and SHALL be the operative complaint in this

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matter.

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IT IS SO ORDERED.
Dated:

July 15, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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