Cunha v. California Forensic Medical Group et al

Filing 16

ORDER Vacating ECF 15 ; CORRECTED ORDER Directing Plaintiff to File Either an Amended Complaint, a Request for Reconsideration, a Notice of Appeal, or a Statement of Intent to Stand on his First Amended Complaint, signed by Magistrate Judge Michael J. Seng on 6/16/17. 14-Day Deadline. (Gonzalez, R)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 JAMES ALFRED CUNHA, 13 14 CASE NO. 1:17-cv-00094-DAD-MJS (PC) Plaintiff, ORDER VACATING ECF NO. 15 v. 18 CORRECTED ORDER DIRECTING PLAINTIFF TO FILE EITHER AN AMENDED COMPLAINT, A REQUEST FOR RECONSIDERATION, A NOTICE OF APPEAL, OR A STATEMENT OF INTENT TO STAND ON HIS FIRST AMENDED COMPLAINT 19 (ECF No. 14) 20 FOURTEEN DAY DEADLINE 15 16 17 CALIFORNIA FORENSIC MEDICAL GROUP, et al., Defendants. 21 22 23 24 This Court’s June 15, 2017, Order (ECF No. 15) in this case contains errors, and is 25 hereby VACATED. Plaintiff should disregard it. 26 Plaintiff is a county jail inmate proceeding pro se and in forma pauperis in this civil 27 rights action pursuant to 42 U.S.C. § 1983. On May 16, 2017, Plaintiff’s first amended 28 complaint was dismissed and he was given thirty days leave to amend. (ECF No. 13.) 1 On June 9, 2017, Plaintiff filed a “Motion to File an Appeal.” (ECF No. 14.) Plaintiff 2 complains that his limited education and lack of access to legal resources have rendered 3 him unable to “complete [his] civil rights complaint to the Court’s satisfaction.” 4 It is unclear from this filing what Plaintiff wishes to do. Because the Court is unable 5 to discern how Plaintiff wishes to proceed, his Motion to File an Appeal will be denied 6 without prejudice. 7 To the extent Plaintiff seeks higher review, his case is not yet ripe (ready) for 8 review by the District Court Judge or the Ninth Circuit Court of Appeal because, since this 9 Court granted leave to amend to address the deficiencies identified by the Court, there is 10 as yet no dispositive order for him to appeal. 11 To the extent Plaintiff wants to ask this Court to reconsider its screening, he does 12 not say what part of the Order he wants reconsidered and he does not identify grounds 13 for reconsideration. 14 Plaintiff is reminded that he was granted “leave to amend”. That gives him an 15 opportunity to try to fix what was wrong with his first amended complaint. If he chooses 16 to amend, he can and should review the Court’s Order to see what problems and 17 deficiencies the Court found with the first amended compliant and then try to correct them 18 in a revised version of that complaint called a “Second Amended Complaint.” He does not 19 need legal training to do that. 20 If Plaintiff wishes to stand on his first amended complaint despite the 21 deficiencies that have been identified, he should so state. If he does, the 22 undersigned will recommend the case be dismissed for failure to state a claim, and 23 Plaintiff may challenge that recommendation before the District Court Judge and, if 24 unsuccessful there, in the appellate court. 25 Lastly, if Plaintiff intends to pursue an unauthorized interlocutory appeal to the 26 Ninth Circuit based on the present record, he should file a notice of appeal clearly 27 identifying the specific order he wishes to appeal from. 28 2 1 Thus, Plaintiff is hereby ORDERED to notify the Court, within fourteen 2 days, whether he seeks reconsideration of the undersigned’s screening Order; if so, 3 he must identify where he thinks the Order is wrong and why he thinks it is wrong. 4 Otherwise, he must, within fourteen days of this order, file either an amended 5 complaint, a notice that he wishes to stand and proceed on his First Amended 6 Complaint, a notice of appeal, or a notice of voluntary dismissal. Failure to respond to 7 this order may result in the dismissal of Plaintiff’s case for failure to prosecute. 8 9 10 11 IT IS SO ORDERED. Dated: June 16, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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