Burnett v. C.D.C.R. Trust Office

Filing 25

ORDER VACATING 23 FINDINGS AND RECOMMENDATIONS AND ORDER GRANTING Plaintiff Thirty Days to File an Amended Complaint, signed by Magistrate Judge Stanley A. Boone on 10/2/17. (30-Day Deadline)(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS ROMERO BURNETT, Plaintiff, 12 13 14 15 16 17 v. C.D.C.R TRUST OFFICE, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-00899-LJO-SAB (PC) ORDER VACATING FINDINGS AND RECOMMENDATIONS, AND GRANTING PLAINTIFF THIRTY DAYS TO FILE AN AMENDED COMPLAINT [ECF Nos. 1, 22] THIRTY-DAY DEADLINE 18 Plaintiff Carlos Romero Burnett is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302. 21 On August 10, 2017, the Court dismissed Plaintiff’s complaint and granted Plaintiff thirty days 22 to file an amended complaint or a notice of voluntary dismissal. Plaintiff did not comply with that 23 order within the time permitted. Thus, on September 19, 2017, the undersigned issued Findings and 24 Recommendations recommending dismissal of the action for failure to state a cognizable claim for 25 relief, failure to obey a court order, and failure to prosecute. 26 On September 28, 2017, Plaintiff filed objections to the Findings and Recommendations, 27 stating some additional allegations and arguments in support of his claim. In light of Plaintiff’s 28 additional allegations and in the interest of justice, the Court will vacate the Findings and 1 1 Recommendations and grant Plaintiff one additional opportunity to amend the complaint to add any 2 additional allegations and attempt to present a cognizable claim. Plaintiff is advised that the amended 3 complaint should be brief, Fed R. Civ. P. 8(a), but must state what each named defendant did that led 4 to the deprivation of Plaintiff’s constitutional or other federal rights. See Ashcroft v. Iqbal, 556 U.S. 5 662, 678 (2009). In addition, Plaintiff may not change the nature of this suit by adding new, unrelated 6 claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Although 7 accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the 8 speculative level….” Bell Atlantic Corp. v. Trowmbly, 550 U.S. 544, 555 (2007). Finally, Plaintiff is 9 advised that an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc., 114 10 F.3d 1467, 1474 (9th Cir. 1997), overruled in part on other grounds, Lacey v. Maricopa County, 693 11 F.3d 896, 928 (9th Cir. 2012); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be 12 “complete in itself without reference to the prior or superseded pleading.” Local Rule 220. 13 Plaintiff is admonished that he must comply with court orders, especially when it comes to 14 deadlines. The deadlines set by the court are not recommendations, but orders. Future orders may not 15 be vacated if Plaintiff is untimely in meeting deadlines. 16 Accordingly, it is HEREBY ORDERED that: 17 1. The Findings and Recommendations, issued September 19, 2017, are vacated; 18 2. Plaintiff is granted thirty (30) days from the date of service of this order in which to 19 file an amended complaint; and 3. 20 21 If Plaintiff fails to comply with this order, the Court will re-issue the Findings and Recommendations recommending dismissal of the action. 22 23 IT IS SO ORDERED. 24 Dated: 25 October 2, 2017 UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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