Segura v. McDonald, et al

Filing 34

ORDER signed by Magistrate Judge Allison Claire on 09/24/14 granting 33 Motion for the second amended complaint to be screened. Defendants McDonald and Villanueva, against whom plaintiff makes colorable claims of a failure to protect in the second amended complaint and who have been previously served, have 30 days to file a response to the second amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE LUIS SEGURA,

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Plaintiff,

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No. 2:13-cv-0393 AC P

v.

ORDER

MICHAEL MCDONALD, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed

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pursuant to 42 U.S.C. § 1983. By order filed March 22, 2013, plaintiff’s complaint was

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dismissed with leave to amend within twenty-eight days. ECF No. 5. Plaintiff’s subsequent first

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amended complaint, ECF No. 11, was found appropriate for service upon two of the named

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defendants and service of the summons and complaint was ordered. See Orders, ECF No. 13,

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filed on June 21, 2013,1 and ECF No. 15, filed July 25, 2013. However, plaintiff thereafter

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sought leave to file a second amended complaint, ECF No. 21, which motion was unopposed.

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ECF No. 22. Plaintiff was granted leave to file a second amended complaint within thirty days by

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order filed on January 15, 2014. ECF No. 25. Plaintiff’s first amended complaint was ultimately

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stricken as defective, pursuant to Fed. R. Civ. P. 11(a), for having not been signed properly. ECF

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Plaintiff had consented to the jurisdiction of the undersigned, ECF No. 9, and a third defendant
was dismissed by the June 21st order.
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No. 30. By that order, filed on March 20, 2014, plaintiff was granted an extension of time to file

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a second amended complaint not later than April 14, 2014. ECF No. 30. Plaintiff filed his

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second amended complaint timely on April 9, 2014. ECF No. 32. Defendants requested

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screening of the second amended complaint on April 10, 2014. ECF No. 33. In their request,

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defendants McDonald and Villanueva note that they were served with the first amended

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complaint but that plaintiff had requested leave to file a second amended complaint prior to the

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expiration of their time to respond to the first amended complaint. Id. Upon screening of the

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second amended complaint, defendants request thirty days to file a responsive pleading. Id.

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The court, upon screening, finds that the second amended complaint states a cognizable

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claim for relief against defendants McDonald and Villanueva for a violation of the Eighth

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Amendment by a failure to protect plaintiff, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §

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1915A(b). If the allegations of the second amended complaint are proven, plaintiff has a

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reasonable opportunity to prevail on the merits of this action.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Defendants’ request for the second amended complaint to be screened, ECF No. 33, is

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granted, and
2. Defendants McDonald and Villanueva, against whom plaintiff makes colorable claims

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of a failure to protect in the second amended complaint and who have been previously served,

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have thirty days to file a response to the second amended complaint.

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DATED: September 24, 2014

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