Brothers, II v. Buenafe et al
Filing
22
ORDER VACATING 16 Findings and Recommendations; ORDER DENYING 21 Motion for Extension of Time; ORDER REQUIRING Plaintiff to Amend or Otherwise Respond, signed by Magistrate Judge Michael J. Seng on 4/11/18. Thirty Day Deadline. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
AUBREY LEE BROTHERS, II,
Plaintiff,
10
11
12
Case No. 1:17-cv-00607-LJO-MJS (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS
v.
(ECF NO. 16)
CHITA BUENAFE, et al.,
Defendants.
13
ORDER DENYING MOTION FOR
EXTENSION OF TIME
(ECF NO. 21)
14
15
ORDER REQUIRING PLAINTIFF TO AMEND
OR OTHERWISE RESPOND
16
THIRTY DAY DEADLINE
17
18
19
20
21
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 February 28, 2018, the Court
screened Plaintiff’s second amended complaint and concluded it stated no cognizable
claims.
(ECF
No.
16.)
Accordingly,
the
undersigned
issued
findings
and
recommendations to dismiss the complaint with prejudice. (Id.)
On March 21, 2018, Plaintiff filed objections to the findings and recommendations.
(ECF No. 20.) On April 2, 2018, he filed a motion for extension of time to file objections
to the findings and recommendations. (ECF No. 21.)
Plaintiff’s objections suggest that he may be able to state a cognizable claim
based on the failure of some defendants to provide him treatment for a fracture that
1
caused pain for a period of at least six months. In light of these objections, the Court will
2
vacate its prior findings and recommendations and will afford Plaintiff a further
3
opportunity to amend to incorporate these facts in a third amended complaint. As
4
always, Plaintiff may forego amendment and notify the Court that he wishes to stand on
5
his complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004)
6
(plaintiff may elect to forego amendment). However, if he does so, the Court will re-
7
screen the second amended complaint based solely on the allegations contained
8
therein. Allegations contained only in the objections will not be considered. Local Rule
9
220 (complaint must be complete in itself without reference to prior pleadings).
10
Given this ruling, Plaintiff’s motion for extension of time will be denied as moot,
11
both on the ground that Plaintiff already has filed objections and because the findings
12
and recommendations are being vacated.
13
Accordingly, it is HEREBY ORDERED that:
14
1.
The Clerk’s Office shall send Plaintiff a blank civil rights complaint form;
15
2.
Within thirty (30) days from the date of service of this order, Plaintiff must:
16
a. File an amended complaint curing the deficiencies identified by the
17
Court in this order, or
18
b. Notify the Court in writing that he wishes to stand on his complaint
19
as written;
20
3.
Plaintiff’s motion for extension of time is denied as moot; and
21
4.
If Plaintiff fails to comply with this order, the undersigned will recommend
22
the action be dismissed for failure to obey a court order and failure to
23
prosecute.
24
25
26
IT IS SO ORDERED.
Dated:
April 11, 2018
/s/
27
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
28
2
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?