Cruz v. Espinosa, et al.

Filing 12

ORDER REGARDING 11 Plaintiff's Motion to Supplement Record signed by Magistrate Judge Barbara A. McAuliffe on 2/4/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff Larry Cruz (“Plaintiff”), a state prisoner proceeding pro se and in forma

LARRY CRUZ,

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Plaintiff,
v.
M. ESPINOSA, et al.,
Defendants.

1:13-cv-01762-BAM (PC)
ORDER REGARDING PLAINTIFF’S
MOTION TO SUPPLEMENT RECORD
(ECF No. 11)

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 1, 2013. On

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October 28, 2014, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A, and

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found that Plaintiff stated a cognizable claim for violation of the Eighth Amendment against

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Defendants Dunn, Hiracheta, Silva and Espinosa, but failed to state any other claims. The Court

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directed Plaintiff to either file a first amended complaint or notify the Court that he did not wish

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to file an amended complaint and was willing to proceed only on the cognizable Eighth

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Amendment claim within thirty days from the date of service. (ECF No. 6.)

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On December 9, 2014, after more than thirty days had passed and Plaintiff failed to

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respond to the Court’s order, the Court dismissed the action for failure to obey a court order.

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(ECF No. 7.) Judgment was entered the same date. (ECF No. 8.)

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On January 12, 2015, Plaintiff filed a motion for reconsideration of the order dismissing

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this action. Plaintiff asserted that he did not receive a copy of the Court’s October 28, 2014

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screening order. (ECF No. 9.) On January 23, 2015, the Court granted Plaintiff’s motion for
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reconsideration, vacated entry of judgment and reopened this action. The Court also directed the

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Clerk of the Court to mail Plaintiff a copy of the Court’s screening order issued on October 28,

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2014. Additionally, the Court directed Plaintiff, within thirty days, to either (1) file a first

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amended complaint curing the deficiencies identified by the Court or (2) notify the Court in

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writing that he does not wish to file a first amended complaint and he is willing to proceed only

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on the cognizable Eighth Amendment claim against Defendants Dunn, Hiracheta, Silva and

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Espinosa. (ECF No. 10.)

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On February 2, 2015, Plaintiff filed the instant motion to supplement the record to

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demonstrate that he received this Court’s October 28, 2014 screening order on January 22, 2015.

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Plaintiff therefore asks the Court to reconsider its dismissal of this action. (ECF No. 11.) As the

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Court has granted Plaintiff’s request for reconsideration and reopened this action, Plaintiff’s

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request to supplement the record is unnecessary and is HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

February 4, 2015

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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