Lindsay v. Fryson, et al

Filing 26

ORDER signed by Magistrate Judge Kendall J. Newman on 8/12/2011 ORDERING that Plaintiff's 24 First Amended Complaint filed on July 28, 2011 is disregarded and serves no purpose in this case. Plaintiff shall timely file and serve an amended co mplaint that complies with the requirements of Judge Karlton's 25 August 11, 2011 order, but which is entitled "Second Amended Complaint." Each defendant shall file and serve a response to plaintiff's Second Amended Complaint within 14 days after service of the Second Amended Complaint. (Duong, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER LINDSAY,

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Plaintiff,
v.
YOLANDA FRYSON, et al.,
Defendants.

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No. 2:10-cv-02842 LKK KJN PS

ORDER
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On June 15, 2011, the undersigned entered an Order and Findings and

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Recommendations addressing defendant County of Yuba’s motion to dismiss and motion to

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strike. (Order and Findings & Recommendations, June 15, 2011, Dkt. No. 22.) On July 28,

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2011, before United States Senior District Judge Lawrence K. Karlton ruled on the proposed

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findings and recommendations, plaintiff prematurely filed a First Amended Complaint (Dkt.

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No. 24). On August 11, 2011, Judge Karlton adopted the proposed findings and

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recommendations and, in that order, authorized plaintiff to file a First Amended Complaint.

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(Order, Aug. 11, 2011, Dkt. No. 25.)

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Because plaintiff’s First Amended Complaint was prematurely filed before Judge

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Karlton entered his order actually authorizing the filing of an amended complaint, plaintiff’s First

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Amended Complaint filed on July 28, 2011, is disregarded and shall serve no further purpose in
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this case. As provided in Judge Karlton’s order, plaintiff shall have 30 days from the date of

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Judge Karlton’s August 11, 2011 order in which to file an amended complaint that is consistent

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with Judge Karlton’s order, as further explained in the now-adopted findings and

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recommendations. (See Order, Aug. 11, 2011, at 3.) Plaintiff’s further amended complaint

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should conform to all requirements of Judge Karlton’s order, except that plaintiff’s further

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amended complaint shall be entitled “Second Amended Complaint.”

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The undersigned notes that plaintiff’s now-disregarded First Amended Complaint

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re-alleged claims that have now been dismissed with prejudice by Judge Karlton. In preparing

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his Second Amended Complaint, plaintiff should very carefully read Judge Karlton’s order and

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the undersigned’s findings and recommendations, and should not re-allege any claims that have

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been dismissed with prejudice or for which plaintiff lacks a good faith legal and factual basis.

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Any claim re-alleged by plaintiff in the Second Amended Complaint that was already dismissed

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with prejudice will be summarily stricken or disregarded.

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For the reasons stated above, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s First Amended Complaint filed on July 28, 2011 (Dkt. No. 24),

is disregarded and serves no purpose in this case.
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Plaintiff shall timely file and serve an amended complaint that complies

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with the requirements of Judge Karlton’s August 11, 2011 order, but which is entitled “Second

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Amended Complaint.”

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3.

Each defendant shall file and serve a response to plaintiff’s Second

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Amended Complaint within 14 days after service of the Second Amended Complaint. See Fed.

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R. Civ. P. 15(a)(3).

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IT IS SO ORDERED.
DATED: August 12, 2011
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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