Baker v. German, et al.

Filing 31

ORDER VACATING 25 FINDINGS AND RECOMMENDATIONS; ORDER STRIKING 29 Third Amended Complaint; and ORDER Directing Clerk of Court to Re-Serve the June 14, 2017 Order and Re-Issue the Necessary Service of Process Documents for Completion and Return Within Thirty (30) Days signed by Magistrate Judge Stanley A. Boone on 9/6/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DOMINIQUE D. BAKER,

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Plaintiff,

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v.
HUMBERTO GERMAN, et al.,

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Defendants.

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Case No.: 1:16-cv-01873-AWI-SAB (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS, STRIKING THIRD
AMENDED COMPLAINT, AND DIRECTING
CLERK OF COURT TO RE-SERVE THE JUNE 4,
2017 ORDER AND RE-ISSUE THE NECESSARY
SERVICE OF PROCESS DOCUMENTS FOR
COMPLETION AND RETURN WITHIN THIRTY
DAYS
[ECF Nos. 25, 28, 29]

Plaintiff Dominique Baker is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On May 1, 2017, the Court screened Plaintiff’s second amended complaint and found that it

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stated a cognizable claim for excessive force against Defendants Humberto German and Phillip

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Holguin, and recommended that Plaintiff’s false imprisonment claim be dismissed for failure to state a

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cognizable claim for relief.

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On June 9, 2017, the Court adopted the Findings and Recommendations, finding service of the

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complaint appropriate as to Defendants Humberto German and Phillip Holguin for excessive force in

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violation of the Eighth Amendment, and dismissed all other Defendants and claims from the action for

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failure to state a cognizable claim.

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On June 14, 2017, the Court forwarded Plaintiff the necessary service of process documents for

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completion and return within thirty days. After thirty days passed and Plaintiff failed to respond to the

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Court’s order, the undersigned issued Findings and Recommendations recommending dismissal of the

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action for failure to comply a court order.

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On September 5, 2017, Plaintiff filed objections to the Findings and Recommendations, along

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with a third amended complaint which was lodged by the Court. In his objections, Plaintiff contends

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that he has responded to the Court’s orders by notifying the Court of his intent to proceed only on the

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excessive force claim against Defendants Humberto German and Phillip Holguin. However, Plaintiff

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overlooks the fact that on June 14, 2017, the Court forwarded the service of process documents to be

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completed by him and returned to the Court within thirty days, to which Plaintiff did not comply. In

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the interest of justice, the Court will vacate the Findings and Recommendations issued July 19, 2017,

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and re-serve the June 14, 2017, order and re-issue the service documents on Plaintiff.
With regard to Plaintiff’s third amended complaint, the Court cannot decipher the purpose in

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submitting a third amended complaint that is identical to the original and first amended complaints

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which have been previously screened by the Court. Accordingly, the Court will direct the Clerk of

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Court to strike the third amended complaint.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

The Findings and Recommendations issued July 19, 2017, are vacated;

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2.

The Clerk of Court shall re-serve the Court’s June 14, 2017 order (Doc. No. 24) on

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Plaintiff, along with the necessary service of process forms for completion and return

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within thirty days from the date of service of this order;
3.

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Plaintiff’s third amended complaint, lodged on September 5, 2017, is stricken from the
record; and

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4.

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Plaintiff is advised that the failure to complete and return the service of process forms

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within thirty (30) days from the date of service of this order will result in a

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recommendation that the action be dismissed.

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IT IS SO ORDERED.

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Dated:

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September 6, 2017
UNITED STATES MAGISTRATE JUDGE

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