Edwards v. High Desert State Prison et al
Filing
22
ORDER signed by Magistrate Judge Kendall J. Newman on 6/7/11 VACATING 17 FINDINGS AND RECOMMENDATIONS; Plaintiff is granted 30 days from the date of this order to file a second amended complaint; if plaintiff does not file a second amended complaint, the court will again recommend that defendant McDonald be dismissed.(Dillon, M)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
BRIAN DARNELL EDWARDS,
11
12
Plaintiff,
No. 2:10-cv-3461 WBS KJN P
vs.
13
HIGH DESERT STATE PRISON, et al.,
14
Defendants.
15
ORDER
/
16
Plaintiff is a state prisoner proceeding without counsel, with a civil rights action
17
pursuant to 42 U.S.C. § 1983. On March 25, 2011, the undersigned issued an order addressing
18
plaintiff’s amended complaint. The undersigned found that the amended complaint stated a
19
colorable claim for relief against defendants Turner-Gambery, Cheney, Mitchell and Swingle.
20
The undersigned found that the amended complaint did not state a colorable claim for relief
21
against defendant Warden McDonald on grounds that plaintiff failed to link this defendant to the
22
alleged deprivations.
23
The March 25, 2011 order stated that plaintiff could proceed to serve defendants
24
Turner-Gambery, Cheney, Mitchell and Swingle, or he could delay serving any defendant and
25
attempt to state a cognizable claim against defendant McDonald by filing a second amended
26
complaint. The March 25, 2011 order further stated that if plaintiff returned the forms necessary
1
1
for service of defendants Turner-Gambery, Cheney, Mitchell and Swingle, it would construe
2
plaintiff’s election as consent to dismissal of all claims against defendant McDonald.
3
On April 22, 2011, plaintiff filed the forms necessary for service of defendants
4
Turner-Gambery, Cheney, Mitchell and Swingle. Accordingly, on May 5, 2011, the undersigned
5
ordered the U.S. Marshal to serve these defendants and recommended dismissal of defendant
6
McDonald.
7
On June 2, 2011, plaintiff filed objections to the findings and recommendations.
8
Plaintiff alleges that he can state a colorable claim against defendant McDonald. Accordingly,
9
the May 5, 2011 findings and recommendations are vacated. Plaintiff is granted thirty days to
10
file a second amended complaint. The second amended complaint must include all claims
11
against all defendants.
12
Accordingly, IT IS HEREBY ORDERED that:
13
1. The May 5, 2011 findings and recommendations (Dkt. No. 17) are vacated;
14
2. Plaintiff is granted thirty days from the date of this order to file a second
15
amended complaint; if plaintiff does not file a second amended complaint, the court will again
16
recommend that defendant McDonald be dismissed.
17
DATED: June 7, 2011
18
19
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
20
21
ed3461.vac
22
23
24
25
26
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?