Hawkins v. Ibarra et al

Filing 15

ORDER Directing Plaintiff to File Notice Clarifying his Intent re 12 , 13 , 14 , signed by Magistrate Judge Barbara A. McAuliffe on 10/1/14. 14-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HOMER EARL HAWKINS,

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Plaintiff,
v.
S. IBARRA, et al.,
Defendants.

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1:14-cv-00009-AWI-BAM (PC)
ORDER DIRECTING PLAINTIFF TO FILE
NOTICE CLARIFYING HIS INTENT
(ECF Nos. 12, 13, 14)
FOURTEEN-DAY DEADLINE

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Plaintiff Homer Earl Hawkins (“Plaintiff”) is a state prisoner proceeding in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on

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December 14, 2012, in the Fresno County Superior Court. Defendants were served with a copy

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the summons and complaint on December 4, 2013, and removed the action to this Court on

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January 2, 2014.

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On August 15, 2014, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. §

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1915A, and found that it stated a cognizable claim for excessive force in violation of the Eighth

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Amendment against Defendant S. Ibarra, but failed to state any other cognizable claims. The

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Court directed Plaintiff to either file a first amended complaint or notify the Court in writing that

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he does not wish to file a first amended complaint. (ECF No. 12.)

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On September 5, 2014, Plaintiff filed a notice of dismissal of the remaining defendants

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and Does in this action. (ECF No. 13.) On the same date, Plaintiff filed a first amended

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complaint against Defendant Ibarra. (ECF No. 14.)
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Plaintiff’s submission of a first amended complaint is not entirely consistent with his

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notice of dismissal regarding certain defendants. Plaintiff must clarify his intention for the

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Court. If Plaintiff intends to proceed on his first amended complaint, then the Court will screen

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the complaint in due course to determine if it states a cognizable claim. If Plaintiff intends to

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proceed only on the claim found cognizable in his original complaint against Defendant Ibarra,

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then the Court will dismiss the remaining defendants and disregard the first amended complaint.

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Accordingly, within fourteen (14) days, Plaintiff shall notify the Court in writing if he

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intends to proceed on his excessive force claim against Defendant Ibarra as alleged in his

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original complaint or if he wishes the Court to screen the first amended complaint filed on

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September 5, 2014, to determine if it states a cognizable claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 1, 2014

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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