Ledesma v. Adame et al

Filing 22

ORDER VACATING 19 FINDINGS and RECOMMENDATIONS Entered on June 24, 2016; ORDER for Clerk to File Third Amended Complaint Lodged July 24, 2016, signed by Magistrate Judge Erica P. Grosjean on 9/15/16. (Verduzco, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE LEDESMA, 12 13 14 15 Plaintiff, vs. 1:13-cv-01227-AWI-GSA-PC ORDER VACATING FINDINGS AND RECOMMENDATIONS ENTERED ON JUNE 24, 2016 (ECF No. 19.) J. TYREE, et al., Defendants. 16 ORDER FOR CLERK TO FILE THIRD AMENDED COMPLAINT LODGED ON JULY 24, 2016 (ECF No. 21.) 17 18 19 Plaintiff Jose Ledesma (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On June 24, 2016, the 21 Court entered findings and recommendations, recommending that this case proceed on 22 Plaintiff’s Second Amended Complaint against defendants Adame, Tyree, and Lundy for 23 violation of the Eighth Amendment based on adverse conditions of confinement, and that all 24 remaining claims and defendants be dismissed with prejudice. (ECF No. 19.) On July 21, 25 2016, Plaintiff filed objections to the findings and recommendations and lodged a Third 26 Amended Complaint. (ECF No. 20, 21.) 27 Plaintiff objects to the Court’s recommendation to dismiss his retaliation claim and 28 seeks leave to file a Third Amended Complaint for the Court’s review. Plaintiff states that he 1 1 “recently acquired understanding about what requisite factual allegations must be made to 2 make out the [retaliation] claim,” and he believes his proposed Third Amended Complaint 3 states a First Amendment retaliation claim. (ECF No. 20 at 1.) 4 “Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so 5 requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 6 2006) (quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where 7 the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an 8 undue delay in the litigation; or (4) is futile.” Id. Upon a review of the proposed Third 9 Amended Complaint, the Court finds no bad faith, undue delay, prejudice to the opposing 10 party, or futility in allowing Plaintiff to file the Third Amended Complaint. Therefore, in the 11 interest of justice, the Court shall vacate the findings and recommendations and direct the Clerk 12 to file the Third Amended Complaint lodged on July 21, 2016. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. The findings and recommendations entered on June 24, 2016 are VACATED; 15 2. Plaintiff is granted leave to file a Third Amended Complaint for the Court’s 16 17 review; 3. 18 19 The Clerk of Court is directed to file the Third Amended Complaint lodged on July 21, 2016; and 4. The Court shall screen the Third Amended Complaint in due course. 20 21 22 IT IS SO ORDERED. Dated: September 15, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2

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