Hearns v. Gonzales

Filing 27

ORDER (1) VACATING 25 Finding and Recommendations Granting Plaintiff's Motion to Amend; (2) DEEMING 19 Third Amended Complaint Amended to Substitute Correctional Sergeant Olsen in Place of Doe 1 as Defendant; and (3) DIRECTING Clerk's Office to Amend Court Records to Reflect Substitution, signed by Magistrate Judge Michael J. Seng on 12/14/15. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMAR R. HEARNS,

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Plaintiff,

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v.

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R. GONZALES, et al.,
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Defendants.

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CASE NO. 1:14-cv-01177-DAD-MJS (PC)
ORDER (1) VACATING FINDINGS AND
RECOMMENDATIONS GRANTING
PLAINTIFF’S MOTION TO AMEND (ECF
No. 25.); (2) DEEMING THIRD AMENDED
COMPLAINT (ECF No. 19) AMENDED TO
SUBSTITUTE CORRECTIONAL
SERGEANT OLSEN IN PLACE OF DOE 1
AS DEFENDANT; AND (3) DIRECTING
CLERK’S OFFICE TO AMEND COURT
RECORDS TO REFLECT SUBSTITUTION

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I.

PROCEDURAL HISTORY

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Plaintiff, a state prisoner incarcerated at Valley State Prison (“VSP”), initiated this

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action, pro se, on June 2, 2014, in Madera County Superior Court. (Notice of Removal,

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ECF No. 2, Ex. A.) Defendant Gonzales removed the matter to this Court on July 25,

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2014, pursuant to 28 U.S.C. § 1441(a), based upon the Court’s original jurisdiction under

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28 U.S.C. § 1331.

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The Court screened Plaintiff’s Complaint, First Amended Complaint, Second

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Amended, and Third Amended Complaint. (ECF Nos. 7, 10, 18, 20.) On August 5,

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2015, the Court issued Findings and Recommendations to allow Plaintiff to proceed on

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his retaliation, Equal Protection, and state law conversion claims against Defendants
Gonzales and Doe 1. (ECF No. 20.) Plaintiff then moved to amend his Third Amended
Complaint to identify Defendant Doe 1 as Correctional Sergeant Olsen. (ECF No. 23.)
On September 29, 2015, the Court issued Findings and Recommendations to grant
Plaintiff’s motion to amend his Third Amended Complaint and to vacate the August 5,
2015 Findings and Recommendations. (ECF No. 25.)
II.

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NAME

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Plaintiff moved to file a Fourth Amended Complaint to identify Defendant Doe 1 as
Correctional Sergeant Olsen.

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(ECF No. 23.)

However, Plaintiff’s Fourth Amended

Complaint does not identify Defendant Olsen by name in the facts section; Defendant
Doe 1 is still named. (ECF No. 24 at 7-8.) Plaintiff also deleted his state causes of
action which the Court found were not cognizable.

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MOTION TO AMEND TO SUBSTITUTE DOE 1 WITH DEFENDANT’S REAL

Given Plaintiff does not seek to amend those claims against Defendants that the
Court found cognizable or add new claims to his Third Amended Complaint,

the

Court will deem Plaintiff’s Third Amended Complaint amended to replace Defendant Doe
1 with Defendant’s real name – Correctional Sergeant Olsen. Plaintiff’s motion for leave
to file a Fourth Amended Complaint (ECF No. 23.) is denied, and the Court’s September
29, 2015 Findings and Recommendations are vacated.
III.

CONCLUSION AND ORDER
Based on the foregoing, the Court HEREBY ORDERS as follows:
1. The September 25, 2015 Findings and Recommendations (ECF No. 25)
are vacated;
2. Plaintiff’s motion to file a Fourth Amended Complaint (ECF No. 23.) is
DENIED. Pursuant to Federal Rule of Civil Procedure 15, Plaintiff’s Third
Amended Complaint (ECF No. 19) is deemed amended to substitute
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Correctional Sergeant Olsen in place of Doe 1; and

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3. The Clerk’s Office is directed to amend the court records to reflect this

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substitution.

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IT IS SO ORDERED.

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Dated:

December 14, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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