Applegate v. Smith et al

Filing 12

ORDER Requiring Plaintiff to Notify the Court of his Intent, signed by Magistrate Judge Erica P. Grosjean on 10/11/2016. (30-Day Deadline)(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN APPLEGATE, 12 Plaintiff, 13 14 15 1:15-cv-00972-EPG (PC) ORDER REQURING PLAINTIFF TO NOTIFY THE COURT OF HIS INTENT v. THIRTY-DAY DEADLINE KAMBREA SMITH, et al., Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Brian Applegate is a prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. ' 1983. Plaintiff’s complaint is currently awaiting screening. The Court notes that on August 15, 2016, Plaintiff voluntarily dismissed a similar case, apparently because at least one of the issues Plaintiff complained of was resolved. (Voluntary Dismissal, Applegate v. Clark, et al., Case No. 1:15-cv-00207-LJO-EPG (E.D. Cal. Aug. 15, 2016), ECF No. 21.) The Court also notes that Plaintiff is currently pursuing an action, Applegate v. Robicheaux, Case No. 1:15-cv-01016-LJO-EPG, in tandem with this case that appears to involve similar and overlapping claims. Applegate v. Robicheaux was initially filed less than two weeks after the complaint in the current case. Because Plaintiff has dismissed his claims in Applegate v. Clark and is currently pursuing claims in Applegate v. Robicheaux that overlap with the claims in Clark and in the 1 1 current case, it is unclear to the Court what Plaintiff’s intent with respect to these cases is. 2 Plaintiff may have intended to dismiss all of his related cases when he dismissed Clark. 3 Alternatively, he may believe that he has separate and distinguishable claims amongst Clark, 4 Robicheaux, and this case. Or it may even be that the current case was filed as a draft version 5 of Robicheaux and that the complaint in Robicheaux was intended to supplant the claims in the 6 current case. 7 8 9 Accordingly, IT IS ORDERED that within 30 days from the date of this order, Plaintiff shall either: 1. File a written report with this Court that states whether any of the issues in this 10 case have been resolved and identify which, if any, claims in this case Plaintiff 11 would like to continue to pursue. Plaintiff is advised that he may not pursue 12 identical claims in more than one case; 13 2. Alternatively, Plaintiff may file a First Amended Complaint to reflect any 14 changes in the scope of the claims or relief sought in this case. Should Plaintiff 15 choose to file an amended complaint, he should note that exhibits and 16 attachments are not required and he should confine his allegations to 25 pages or 17 less; or, 18 3. 19 20 If Plaintiff no longer wishes to pursue the claims in this case, he should notify the Court by filing a notice of voluntary dismissal. Failure to comply with this order may result in this case being dismissed. 21 22 23 IT IS SO ORDERED. Dated: October 11, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 2

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