Bealer v. Warden of Kern Valley State Prison
Filing
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COPY of ORDER Filed in Case No. 1:16-cv-0367-DAD-SKO, Directing Clerk to Open New Case, signed by Magistrate Judge Sheila K. Oberto on 9/22/17. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANTWOINE BEALER,
Plaintiff,
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v.
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KERN VALLEY STATE PRISON,
Defendant.
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Case No. 1:16-cv-00367-DAD-SKO (PC)
ORDER ON PLAINTIFF’S NOTICE OF ERROR
AND GRANTING PLAINTIFF’S MOTION FOR
AN EXTENSION OF TIME TO FILE AMENDED
COMPLAINT
(Docs. 13, 14, 16)
THIRTY (30) DAY DEADLINE
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Plaintiff, Antwoine Bealer, is a state prisoner proceeding pro se in this civil rights action
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pursuant to 42 U.S.C. ' 1983. The Complaint was screened and dismissed with leave to amend
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on January 27, 2017. (Doc. 10.) Plaintiff requested and received an extension of time to file an
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amended complaint. (Docs. 11, 12.) On March 7, 2017, the First Amended Complaint was filed
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in this action. (Doc. 13.) On March 20, 2017, a Second Amended Complaint was lodged in this
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action. (Doc. 14.)
On August 21, 2017, the First and Second Amended Complaints were dismissed with
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leave to amend. (Doc. 15.) In its order, the Court noted that in the First Amended Complaint,
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Plaintiff had wholly changed both the nature of claims asserted and the prison employees who
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allegedly violated his civil rights. (Id.) The Court also noted that the document lodged as a
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second amended complaint is deficient as an amended complaint since it only contains legal
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arguments, without any factual allegations. (Id.)
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On September 18, 2017, Plaintiff filed a request for an extension of time to file an
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amended complaint in which he explained that, although presented on an amended civil rights
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complaint form, Plaintiff did not intend to file the First Amended Complaint (Doc. 13) in this
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action, but instead intended that it be opened as a separate, new case with different factual
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allegations and state actors. (Doc. 16.) The Court notes that the number for this case was not
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written on the amended complaint form by Plaintiff, but by personnel in the Clerk’s Office. (Doc.
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13.) It appears that the Clerk’s Office errantly filed Plaintiff’s new complaint as the First
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Amended Complaint in this action, instead of opening a new case, and then mistakenly lodged
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Plaintiff’s amended pleading as a Second Amended Complaint. This error requires correction.
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Further, although Plaintiff seeks a sixty (60) day extension of time to file an amended
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complaint, he provides only minimal justification for his request. Thus, Plaintiff has not shown
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good cause for a sixty (60) day extension of time, but is granted a thirty (30) day extension of
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time to amend his pleading.
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Accordingly, it is HEREBY ORDERED that:
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1.
The First Amended Complaint, filed on March 7, 2017, (Doc. 13), is STRICKEN
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from the record in this case and the Clerk’s Office is directed to open it as a new
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case;
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2.
The Clerk’s Office is directed to file the Amended Complaint, which was lodged
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on March 20, 2017, (Doc. 14), and to rename it as “FIRST AMENDED
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COMPLAINT”;
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3.
The Clerk’s Office is directed to send Plaintiff a copy of the order dismissing
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complaint with leave to amend which issued on January 27, 2017, (Doc. 10), along
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with service of this order;
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4.
Plaintiff is granted thirty (30) days from the date of service of this order to file a
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second amended complaint which must comply with the standards in the January
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27, 2017 screening order; and
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//
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5.
Plaintiff’s failure to comply with this order will result in recommendation
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that this action be dismissed for Plaintiff’s failure to obey a court order and to
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state a claim upon which relief may be granted.
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IT IS SO ORDERED.
Dated:
September 22, 2017
/s/
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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