(PC) Blair v. Mendivil

Filing 1

ORDER Directing Clerk of Court to Open New Action and the Amended Complaint, Filed by Plaintiff on June 30, 2017, be the Operative Complaint in the New Action and Directing Defendants to File a Further Response to the Second Amended Complaint within Thirty Days signed by Magistrate Judge Stanley A. Boone on 08/01/2017.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PERRY C. BLAIR, 12 13 14 15 Plaintiff, v. CDCR, et al., Defendants. 16 17 18 19 20 21 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:14-cv-01156-LJO-SAB (PC) ORDER DIRECTING CLERK OF COURT TO OPEN NEW ACTION AND THE AMENDED COMPLAINT, FILED BY PLAINTIFF ON JUNE 30, 2017, BE THE OPERATIVE COMPLAINT IN THE NEW ACTION AND DIRECTING DEFENDANTS TO FILE A FURTHER RESPONSE TO THE SECOND AMENDED COMPLAINT WITHIN THIRTY DAYS [ECF Nos. 67, 68, 69] Plaintiff Perry C. Blair is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s fourth amended complaint, motion to severe, and motion to proceed in forma pauperis, filed June 30, 2017. 22 I. 23 PROCEDURAL BACKGROUND 24 On February 9, 2016, Defendants filed a motion to dismiss the complaint for failure to state a 25 cognizable claim for relief and a separate motion to sever claims. (ECF Nos. 31, 32.) Plaintiff filed 26 an opposition on June 2, 2016, and Defendants filed a reply on June 9, 2016. (ECF Nos. 43-46.) 27 28 On July 15, 2016, the undersigned issued Findings and Recommendations recommending that Defendants’ motion to dismiss be granted in part and denied in part. The Findings and 1 1 Recommendations specifically recommended that Defendants’ motion to dismiss Plaintiff’s request 2 for injunctive relief and official-capacity claims for monetary damages be granted, Defendants’ 3 motion to dismiss certain claims for failure to state a cognizable claim for relief be denied, Plaintiff’s 4 motion to amend and/or supplement the second amended complaint be granted to the cure the Rule 20 5 defect only, and Defendants’ motion to sever Plaintiff’s medical claim be denied, without prejudice. 6 The Findings and Recommendations were adopted in full on September 28, 2016, and the Clerk of 7 Court was directed to file and docket Plaintiff’s third amended complaint which was attached to his 8 objections (Doc. No. 53). 9 10 11 On February 24, 2017, the undersigned dismissed Plaintiff’s third amended complaint, with leave to amend, for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. On June 30, 2017, Plaintiff filed an amended complaint, along with a separate motion 12 requesting to sever the medical claims and to proceed in this action only on the retaliation claim 13 against Defendant Johnson, the cruel and unusual punishment claim against Defendants Johnson, 14 Ybarra, Alva, Chan, O’Daniels, Franco, Sanchez, Esqueda, Santos and John Doe (Assistant Warden), 15 and due process claim against Defendants Santos, Esqueda, and Ybarra. 16 II. 17 DISCUSSION 18 The Court will grant Plaintiff’s request to sever and file a new action regarding the allegations 19 presented in the amended complaint, filed June 30, 2017, and allow this action to proceed on the 20 second amended complaint, filed May 4, 2015. As Plaintiff has now expressed a desire to not further 21 amend the complaint, but rather to proceed on the second amended complaint, filed May 4, 2015, the 22 Court will reinstate the second amended complaint as the operative complaint in this action, and direct 23 Defendants to file a further response within thirty (30) days from the date of service of this order. 24 III. 25 ORDER 26 Based on the foregoing, it is HEREBY ORDERED that: 27 1. 28 Plaintiff’s motion to severe his deliberate indifference to a serious medical claim as set forth in the amended complaint, filed June 30, 2017, is granted, and the Clerk of Court is directed to 2 1 open a new prisoner civil rights complaint and file the fourth amended complaint (Doc. No. 67)1, 2 along with the motion to proceed in forma pauperis in the new action(Doc. No. 69); 3 2. This action proceeds on Plaintiff’s second amended complaint, filed May 4, 2015; and 4 3. Defendants Johnson, Ybarra, Alva, Chan, O’Daniels, Franco, Sanchez, Esqueda, 5 Santos, and John Doe (Assistant Warden), shall file a further response to the second amended 6 complaint within thirty (30) days from the date of service of this order. 7 8 IT IS SO ORDERED. 9 Dated: August 1, 2017 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 28 In directing that a new action be opened, the Court expresses no opinion as to whether Plaintiff has in fact stated a cognizable claim for deliberate indifference. 3

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