Kinder v. Cortez et al

Filing 3

ORDER Directing Clerk of Court to Open a New Civil Rights Action on Behalf of Plaintiff signed by Magistrate Judge Michael J. Seng on 11/21/2016. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BOBBY LEE KINDER, JR.,

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Plaintiff,
v.
MERCED COUNTY,
Defendant.

CASE No. 1:16-cv-01311-MJS (PC)
ORDER STRIKING SECOND AMENDED
COMPLAINT
AND
MOTION
TO
PROCEED IN FORMA PAUPERIS
(ECF Nos. 12, 13)
ORDER DIRECTING CLERK TO OPEN
NEW CASE

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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. He has consented to Magistrate
Judge jurisdiction. No other parties have appeared in the action.
Plaintiff’s complaint was dismissed for failure to state a claim, and he was given
leave to amend. (ECF No. 9.) On November 9, 2016, the Court dismissed Plaintiff’s first
amended complaint because it contained no allegations regarding the original
defendant, did not address Plaintiff’s original claims, and did not address any of the
deficiencies set out in the Court’s initial screening order. (ECF No. 11.) Instead, Plaintiff
brought new claims against new defendants bearing no apparent relationship to his
original claims. See Fed. R. Civ. P. 18(a), 20(a)(2). Plaintiff was advised that such
allegations may only be brought in a separate suit.

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Plaintiff since has filed a document styled as a second amended complaint. (ECF

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No. 12.) He also filed a motion to proceed in forma pauperis, although he already has

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been granted pauper status in this case. (ECF No. 13.) The second amended complaint

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does not address the allegations contained in Plaintiff’s initial complaint. It appears that

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Plaintiff instead intended to open a new action with these documents.

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Accordingly, it is HEREBY ORDERED that:

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1. The Clerk of Court is directed to:

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a. Open a new civil rights action on behalf of Plaintiff,

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b. File and docket a copy of this order in the new action,

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c. File and docket in the new action a copy of the complaint filed

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November 14, 2016 (ECF No. 12),

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d. File and docket in the new action a copy of the motion to proceed in

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forma pauperis filed November 14, 2016 (ECF No. 13), and

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e. Send Plaintiff an endorsed copy of the November 14, 2016

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complaint bearing the case number of the new action.

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2. The second amended complaint (ECF No. 12) and motion to proceed in

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forma pauperis (ECF No. 13) are STRICKEN from the docket in this action;

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3. Within thirty (30) days of the date of service of this order, Plaintiff must file

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a second amended complaint curing the deficiencies identified by the Court

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in the initial screening order or a notice of voluntary dismissal; and

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4. If Plaintiff fails to file an amended complaint or notice of voluntary

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dismissal, the undersigned will dismiss this action, with prejudice, for failure

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to comply with a court order and failure to state a claim.

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IT IS SO ORDERED.
Dated:

November 21, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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