(PC) Delphin v. Morley, et al.
ORDER for Clarification, signed by Magistrate Judge Sheila K. Oberto on 04/27/2021. Twenty-One Day Deadline. (Maldonado, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Case No. 1:19-cv-01076-NONE-SKO (PC)
ORDER FOR CLARIFICATION
J. MORLEY, et al.,
On January 27, 2021, the undersigned issued findings and recommendations to grant
Defendants’ motion to partially dismiss the complaint. (Doc. 34.) On March 26, 2021, District
Judge Dale A. Drozd adopted the findings and recommendations, dismissing, with leave to
amend, Plaintiff’s claims of excessive force and failure to intercede against Defendants
Hammonds and Whitson. (Doc. 37.)
On March 26, 2021, the Court directed Plaintiff to file a first amended complaint curing
the deficiencies in his pleading or a notice that he wishes to proceed only on the claims previously
found cognizable, i.e., claims of excessive force and/or failure to intercede against Defendants
Banuelos, Morley, and Villalobos and claims of deliberate indifference to serious medical needs
against Defendants Brown and Stewart. (Doc. 38.)
On April 19, 2021, Plaintiff filed a first amended complaint. (Doc. 41.) However, on April
26, 2021, Plaintiff filed a notice that he “wish[es] to not file a first amended complaint and
instead wish[es] to . . . proceed” on the claims previously found cognizable, identified above.
(Doc. 42.) Thus, Plaintiff has filed conflicting documents.
Accordingly, the Court DIRECTS Plaintiff to file a notice indicating (1) whether he
wishes to proceed on his first amended complaint or (2) whether he instead wishes to withdraw
his first amended complaint and proceed only on the claims of excessive force and/or failure to
intercede against Defendants Banuelos, Morley, and Villalobos, and the claims of deliberate
indifference to serious medical needs against Defendants Brown and Stewart, in his original
complaint. Plaintiff shall have 21 days from the date of service of this order to file the notice.
IT IS SO ORDERED.
April 27, 2021
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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