Jones v. Cannedy et al

Filing 32

ORDER signed by Magistrate Judge Kendall J. Newman on 7/28/2011. The 7/13/2011 28 Order to Show Cause is DISCHARGED. Plaintiff's 23 27 Requests for Leave to file First Amended Complaint are GRANTED. The 22 First Amended Complaint is now the operative pleading. Mr. Jones shall, w/in 30 days after filing date of Order, file attached "Notice" indicating whether he intends to proceed on First Amended Complaint or on Second Amended Complaint. Should he intend to file Second Amended, the Complaint must be attached to completed "Notice". Defendants' 18 Motion to Dismiss is TERMINATED without prejudice. (Marciel, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHERMAN JONES, et al.,

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Plaintiffs,

No. 2:10-cv-2174 KJM KJN P

vs.
C. CANNEDY, et al.,

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ORDER

Defendants.

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On July 13, 2011, this court ordered defendants to show cause for their failure to

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comply with this court’s order filed March 17, 2011, requiring that defendants file a reply to

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plaintiff’s opposition to defendants’ motion to dismiss, and a response to plaintiff’s requests for

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leave to file a First Amended Complaint; the court further ordered that defendants file such reply

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and response.

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Defendants have now complied with all orders. For good cause shown, the order
to show cause (Dkt. No. 28) is discharged.
Defendants have filed a statement of nonopposition to plaintiff’s requests for

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leave to file a First Amended Complaint. The requests (Dkt. Nos. 23, 27) are hereby granted.

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Plaintiff’s First Amended Complaint filed March 7, 2011 (Dkt. No. 22) shall be the operative

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complaint. However, given the ambiguities in plaintiff’s second request for leave to further
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amend his complaint (Dkt. No. 27), plaintiff will be accorded thirty days within which to file a

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Second Amended Complaint, or a statement that he intends to proceed on the First Amended

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Complaint. If plaintiff fails to timely inform the court of his choice, this action shall proceed on

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the currently operative First Amended Complaint.

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Therefore, defendants’ motion to dismiss filed December 21, 2010 (Dkt. No. 18)

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is dismissed without prejudice. Defendants may renew their motion, including any pertinent

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arguments set forth in their reply, after plaintiff decides whether he is proceeding on his First

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Amended Complaint or an a Second Amended Complaint.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The order to show cause filed July 13, 2011 (Dkt. No. 28) is discharged;

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2. Plaintiff’s requests for leave to file a First Amended Complaint (Dkt. Nos. 23,

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27) are granted;

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3. The First Amended Complaint filed March 7, 2011 (Dkt. No. 22) is now the
operative complaint;

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4. Plaintiff shall, within thirty days after the filing date of this order, file the

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attached “Notice” indicating whether he intends to proceed on the First Amended Complaint, or

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on a Second Amended Complaint.

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5. Should plaintiff intend to proceed on a Second Amended Complaint, such

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Second Amended Complaint must be attached to plaintiff’s completed “Notice,” and the Clerk of

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Court is directed to separately file the “Notice” and Second Amended Complaint.

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6. Defendants’ motion to dismiss filed December 21, 2010 (Dkt. No. 18) is
dismissed without prejudice.
SO ORDERED.
DATED: July 28, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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jone2174.ord.disch.osc

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHERMAN JONES, et al.,

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Plaintiffs,

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No. 2:10-cv-2174 KJM KJN P

vs.
C. CANNEDY, et al.,

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NOTICE

Defendant.

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Plaintiff hereby:

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Proceeds on the First Amended Complaint (Dkt. No. 22)

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OR

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Proceeds on a Second Amended Complaint, attached hereto.

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_________________________________

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Date

Plaintiff

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