Thornton v. Grissom et al

Filing 25

ORDER (1) VACATING 22 Findings and Recommendations; (2) DIRECTING Plaintiff to File Amended Complaint; and (3) GRANTING Request for Extension of Time to File Motion for Reconsideration, signed by Magistrate Judge Michael J. Seng on 12/23/16. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SIMON THORNTON,

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Plaintiff,
v.

CASE NO. 1:16-cv-0498-AWI-MJS (PC)
ORDER
(1) VACATING FINDINGS AND
RECOMMENDATIONS;

DONALD L. GRISSOM, et al.,
Defendants.

(2) DIRECTING PLAINTIFF TO FILE
AMENDED COMPLAINT; AND

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(3) GRANTING REQUEST FOR
EXTENSION OF TIME TO FILE MOTION
FOR RECONSIDERATION
(ECF NOS. 22, 24)

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983.
On October 4, 2016, Plaintiff’s First Amended Complaint (ECF No. 9) was
screened and found to state a cognizable Eighth Amendment excessive force claim

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against Defendant Grissom and an Eighth Amendment failure to protect claim against

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Defendant Cruz. (ECF No. 18.) The Court concluded that all other claims and

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Defendants were subject to dismissal. Plaintiff was then directed to file a notice of his

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willingness to proceed on the pleading as screened or to file a Second Amended

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Complaint.

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On October 21, 2016, Plaintiff filed a notice of his willingness to proceed on the

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First Amended Complaint as screened. (ECF No. 20.) Accordingly, the undersigned

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issued Findings and Recommendations to that effect on November 8, 2016,

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recommending that Plaintiff be permitted to proceed on the cognizable claims asserted

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in the First Amended Complaint and that all other claims and Defendants be dismissed

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with prejudice. (ECF No. 22.) The following day, on November 9, 2016, the undersigned

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denied three of Plaintiff’s motions for appointment of counsel. (ECF No. 23.)

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Plaintiff has now filed objections to the Findings and Recommendations. (ECF No.

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24.) Therein, Plaintiff seeks leave to file an amended complaint and an extension of time

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to file a motion for reconsideration of the November 9, 2016, order denying his requests

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for appointment of counsel.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1. The November 8, 2016, Findings and Recommendations (ECF No. 22) are

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VACATED;

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2. Plaintiff shall file a Second Amended Complaint within thirty days from the

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date of this Order. If Plaintiff fails to file an amended pleading, the Court will

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presume that Plaintiff wishes to proceed on the First Amended Complaint as

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screened and will therefore re-issue the November 8, 2016, Findings and

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Recommendations; and

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3. Plaintiff’s request for an extension of time is GRANTED. Within fourteen days

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from the date of this Order, Plaintiff shall file a motion for reconsideration of

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the November 9, 2016, Order Denying Plaintiff’s Motions for Appointment of

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Counsel.

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IT IS SO ORDERED.
Dated:

December 23, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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