Venable v. Patel

Filing 54

ORDER Construing Plaintiff's Filing as a 53 Motion for Clarification; ORDER Granting in Part Plaintiff's Motion for Clarification signed by Magistrate Judge Barbara A. McAuliffe on 07/21/2021. (Flores, E)

Case 1:17-cv-01519-BAM Document 54 Filed 07/22/21 Page 1 of 2
1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ELVIS VENABLE,

12
13
14
15

Plaintiff,
v.

ORDER CONSTRUING PLAINTIFF’S
FILING AS A MOTION FOR
CLARIFICATION
ORDER GRANTING IN PART PLAINTIFF’S
MOTION CLARIFICATION

PATEL,
Defendant.

(ECF No. 53)

16
17

Case No. 1:17-cv-01519-BAM (PC)

Plaintiff Elvis Venable (“Plaintiff”) is a state prisoner proceeding pro se and in forma

18

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

19

Plaintiff’s claim against Defendant Patel for nominal, compensatory, and punitive damages

20

resulting from Defendant Patel’s alleged violation of Plaintiff’s Eighth Amendment rights. All

21

parties have consented to Magistrate Judge jurisdiction. (ECF No. 44.) Pursuant to the Court’s

22

second scheduling order issued on May 18, 2021, trial is currently set to begin on February 14,

23

2022. (ECF No. 50.)

24

In a previous filing, Plaintiff requested that the defense correct the penal code that this

25

case is filed under, “to 2254(3)(c) and some other penal code?!?” (ECF No. 51.) The Court

26

denied the request, as it was not clear what correction Plaintiff was requesting, and explained that

27

the case is proceeding on Plaintiff’s Eighth Amendment claim against Defendant Patel, and there

28

are no penal codes or state law claims at issue.
1

Case 1:17-cv-01519-BAM Document 54 Filed 07/22/21 Page 2 of 2
1

Currently before the Court is Plaintiff’s notice, filed July 19, 2021, to inform the Court

2

that he stated the wrong penal code. (ECF No. 53.) Plaintiff states that he would like to clarify

3

the penal code this civil rights case is filed under, which is Penal Code 2246(3)(c). (Id.)

4

Based on Plaintiff’s filing, it appears that further clarification is necessary. As the Court

5

previously explained, this civil rights action was filed pursuant to 42 U.S.C. § 1983, and is

6

proceeding only on Plaintiff’s Eighth Amendment claim against Defendant Patel. There are no

7

penal codes or state law provisions at issue in this case, and therefore no correction is necessary.

8

However, to the extent Plaintiff is requesting clarification from the Court regarding the claims

9

proceeding in this action, the request is granted in part.

10

Accordingly, IT IS HEREBY ORDERED as follows:

11

1. Plaintiff’s filing, (ECF No. 53), is construed as a motion for clarification; and

12

2. Plaintiff’s motion for clarification, (ECF No. 53), is GRANTED IN PART, as discussed

13

above.

14
15
16
17

IT IS SO ORDERED.
Dated:

/s/ Barbara

July 21, 2021

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
2