Escalante v. Uhren, et al

Filing 23

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/16/11 ORDERING that plaintiffs 21 second amended complaint is DISMISSED and plaintiff is granted one final opportunity to file a third amended complaint. No further amendments will be allowed. (Dillon, 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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MIKE ANGEL ESCALANTE,

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Plaintiff,

No. CIV S-11-1508 JAM GGH P

vs.
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E. UHREN, et al.,

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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42

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U.S.C. § 1983. This case was removed from state court and defendants filed a motion to dismiss

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which plaintiff did not oppose and instead filed an amended complaint on August 3, 2011.

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Defendants filed an answer and a motion to dismiss on August 17, 2011. However, on

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September 12, 2011, court issued a screening order dismissing the amended complaint with leave

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to amend and the motion to dismiss was vacated. The court noted that the amended complaint

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appeared to be barred by Heck v. Humphrey, 512 U.S. 477 (1994).

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Yet on the same day the court issued the screening order, plaintiff filed a non-

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opposition to the motion to dismiss and a second amended complaint, though it is clear that

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plaintiff had not yet reviewed the court’s screening order. As the second amended complaint is

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substantially similar to the prior amended complaint that the court screened, and also appears to
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be Heck barred, the second amended complaint is dismissed for the reasons set forth in the

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court’s September 12, 2011, screening order (Doc. 19), but plaintiff will still be allowed one final

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opportunity to amend within twenty-eight days.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s September 12, 2011,

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second amended complaint (Doc. 21) is dismissed, and plaintiff is granted one final opportunity

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to file a third amended complaint. No further amendments will be allowed.

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DATED: September 16, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH: AB

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esca1508.ord3

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