Payan v. Tate et al

Filing 148

ORDER Granting Plaintiff's Request to Withdraw his Motion to Amend re 123 , signed by Magistrate Judge Barbara A. McAuliffe on 3/5/17. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL J. PAYAN, 12 13 14 15 Plaintiff, v. TATE, et al., No. 1:13-cv-00807 LJO BAM PC ORDER GRANTING PLAINTIFF’S REQUEST TO WITHDRAW HIS MOTION TO AMEND (ECF No. 123) Defendants. 16 17 Plaintiff Michael J. Payan (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action. This action is proceeding on Plaintiff’s October 19, 2015, First 19 Amended Complaint. 20 On April 19, 2016, the Court granted Defendants’ motion for summary judgment for 21 failure to exhaust in part and dismissed certain claims. After Defendants had filed their motion 22 for summary judgment for failure to exhaust, but before the Court ruled on it, the Court granted 23 Plaintiff leave to file an amended complaint asserting certain claims. Plaintiff filed his First 24 Amended Complaint on October 19, 2015. Defendants filed a motion to dismiss the claims in the 25 First Amended Complaint. That motion is pending. 26 On June 6, 2016, Plaintiff opposed the Defendants’ motion to dismiss (Doc. 122), and in 27 conjunction with his opposition, Plaintiff filed a Motion to Amend his First Amended Prisoner 28 Civil Rights Complaint. (Doc. 123.) On August 15, 2016, Plaintiff filed a Second Motion to 1 1 Supplement the First Amended Complaint. (Doc. 133.) In this Second Motion, Plaintiff asks the 2 Court to strike his previous Motion to Amend and substitute the Second Motion to Supplement. 3 4 5 Plaintiff respectfully requests this court strike Plaintiffs previous May (approximately) 30th, 2016 “Motion to Supplement Plaintiff’s First Amended Complaint” and “(purposed) Plaintiff’s Supplemental Pleadings” and except (Second Purposed) Plaintiff’s supplemental pleadings. Doc. 133 p. 2. 6 7 8 9 10 11 12 13 (Doc. 133, p. 2) (unedited.) The Court understands from this request that Plaintiff wishes to withdraw his first motion to amend, filed on June 6, 2016, and substitute the later filed “second” motion to supplement. (Doc. 133) Based upon Plaintiff’s request to withdraw his Motion to Amend, IT IS HEREBY ORDERED that the motion is WITHDRAWN. The Clerk of the Court is directed to term the motion, Doc. 123, from pending motions. 14 15 16 IT IS SO ORDERED. Dated: /s/ Barbara March 5, 2017 17 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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