Wilson v. Wever et al

Filing 53

ORDER signed by Judge Lawrence K. Karlton on 9/6/11 ORDERING that the findings and recommendations filed 6/22/11, are adopted except as modified above; Plaintiff's complaint is dismissed without prejudice; Plaintiff is granted leave of forty-five (45) days from the issuance of this order to file his second amended complaint. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEE WILSON,

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Plaintiff,

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No. CIV S-09-2191-LKK-CMK-P

vs.

ORDER

SANDRA LEE WEVER, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to Eastern

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District of California local rules.

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On June 22, 2011, the Magistrate Judge filed findings and recommendations

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herein which were served on the parties and which contained notice that the parties may file

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objections within a specified time. Timely objections to the findings and recommendations have

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been filed.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304(f), this court has conducted a de novo review of this case. Having carefully reviewed the

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entire file, the court finds the findings and recommendations to be supported by the record and by

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proper analysis. However, the court finds that plaintiff should be granted an opportunity to file a

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second amended complaint. Specifically, while plaintiff did not make any allegations concerning

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Proffitt’s alleged unconstitutional conduct in his amended complaint, plaintiff has identified

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some conduct of Proffitt in his objections to the findings and recommendations from which the

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court could plausibly infer a conspiracy. For this reason, the court grants plaintiff leave to file a

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second amended complaint. The court advises plaintiff to specifically identify the conduct of

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Proffitt, as well as the other defendants, in this complaint. Often it is clearest to present such

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allegations in the form of a time-line, starting with the earliest actions and ending with the most

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recent actions.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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The findings and recommendations filed June 22, 2011, are adopted

except as modified above;

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2.

Plaintiff’s complaint is dismissed without prejudice;

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3.

Plaintiff is granted leave of forty-five (45) days from the issuance of this

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order to file his second amended complaint.

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DATED: September 6, 2011.

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