Mitchell v. Beard et al

Filing 21

ORDER striking 19 First Amended Complaint as violation of court's August 23, 2017 Order, with leave to amend signed by Magistrate Judge Stanley A. Boone on 12/5/2017. ( Second Amended Complaint due within 30-Days). (Lundstrom, T)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT MITCHELL, 12 Plaintiff, 13 14 Case No. 1:17-cv-01032-DAD-SAB (PC) ORDER STRIKING FIRST AMENDED COMPLAINT AS VIOLATION OF COURT’S AUGUST 23, 2017 ORDER, WITH LEAVE TO AMEND v. CDCR SECRETARY JEFFERY BEARD, et al., [ECF No. 19] 15 Defendants. 16 17 Plaintiff Robert Mitchell (“Plaintiff”), a former state prisoner, proceeding pro se and in 18 forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 12, 2017 in the 19 Central District of California. On August 3, 3017, the matter was transferred to the Eastern 20 District of California. 21 On August 23, 2017, the Court dismissed Plaintiff’s complaint for failure to state a claim 22 under section 1983 and ordered Plaintiff to file an amended complaint within thirty days. (ECF 23 No. 11.) On September 25, 2017, Plaintiff filed objections to the order, and on October 2, 2017, 24 the Court overruled Plaintiff’s objections and granted Plaintiff an additional thirty days to file an 25 amended complaint. (ECF Nos. 13, 14.) After more than thirty days passed and Plaintiff failed 26 to file an amended complaint, the Court issued Findings and Recommendations recommending 27 dismissal of the action for failure to comply with a court order and failure to state a cognizable 28 claim on November 13, 2017. 1 On November 20, 2017, the Court received a letter from Plaintiff, along with a first 1 2 amended complaint. (ECF Nos. 18, 19.) Based on Plaintiff’s November 20, 2017 filings, the 3 Court vacated the November 13, 2017 Findings and Recommendations and noted that Plaintiff’s 4 first amended complaint would be screened in due course. Plaintiff’s first amended complaint is 57 pages, excluding exhibits in excess of the 25- 5 6 page limit established by the Court’s screening order of August 23, 2017. (ECF No. 11.) 7 Accordingly, Plaintiff’s first amended complaint shall be stricken from the record, and Plaintiff 8 may file a second amended complaint that complies with the 25-page limit within thirty days 9 from the date of service of this order. 10 Based on the foregoing, it is HEREBY ORDERED that: 11 1. Plaintiff’s first amended complaint, filed on November 20, 2017 (ECF No. 19), is 12 stricken from the record; 2. 13 Within thirty days from the date of service of this order, Plaintiff may file a 14 second amended complaint that does not exceed the 25-page limit; and 3. 15 Failure to comply with this order will result in a recommendation to the District 16 Judge that the action be dismissed for failure to comply with a court order and for the reasons 17 explained in the Court’s August 23, 2017 screening order. 18 19 IT IS SO ORDERED. 20 Dated: December 4, 2017 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 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?