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)
1
2
3
4
5
6
7
8
9
10
UNITED STATES DISTRICT COURT
11
EASTERN DISTRICT OF CALIFORNIA
12
13
SIMON THORNTON,
14
15
16
17
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
18
19
20
21
(3) GRANTING REQUEST FOR
EXTENSION OF TIME TO FILE MOTION
FOR RECONSIDERATION
(ECF NOS. 22, 24)
22
23
24
25
26
27
28
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
1
against Defendant Grissom and an Eighth Amendment failure to protect claim against
2
Defendant Cruz. (ECF No. 18.) The Court concluded that all other claims and
3
Defendants were subject to dismissal. Plaintiff was then directed to file a notice of his
4
willingness to proceed on the pleading as screened or to file a Second Amended
5
Complaint.
6
On October 21, 2016, Plaintiff filed a notice of his willingness to proceed on the
7
First Amended Complaint as screened. (ECF No. 20.) Accordingly, the undersigned
8
issued Findings and Recommendations to that effect on November 8, 2016,
9
recommending that Plaintiff be permitted to proceed on the cognizable claims asserted
10
in the First Amended Complaint and that all other claims and Defendants be dismissed
11
with prejudice. (ECF No. 22.) The following day, on November 9, 2016, the undersigned
12
denied three of Plaintiff’s motions for appointment of counsel. (ECF No. 23.)
13
Plaintiff has now filed objections to the Findings and Recommendations. (ECF No.
14
24.) Therein, Plaintiff seeks leave to file an amended complaint and an extension of time
15
to file a motion for reconsideration of the November 9, 2016, order denying his requests
16
for appointment of counsel.
17
Based on the foregoing, IT IS HEREBY ORDERED that:
18
1. The November 8, 2016, Findings and Recommendations (ECF No. 22) are
19
VACATED;
20
2. Plaintiff shall file a Second Amended Complaint within thirty days from the
21
date of this Order. If Plaintiff fails to file an amended pleading, the Court will
22
presume that Plaintiff wishes to proceed on the First Amended Complaint as
23
screened and will therefore re-issue the November 8, 2016, Findings and
24
Recommendations; and
25
3. Plaintiff’s request for an extension of time is GRANTED. Within fourteen days
26
27
28
2
1
from the date of this Order, Plaintiff shall file a motion for reconsideration of
2
the November 9, 2016, Order Denying Plaintiff’s Motions for Appointment of
3
Counsel.
4
5
6
IT IS SO ORDERED.
Dated:
December 23, 2016
/s/
7
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?