Coleman v. Foulk, et al

Filing 48

ORDER signed by Magistrate Judge Carolyn K. Delaney on 06/08/16 ordering Plaintiffs motion for leave to file a second amended complaint 41 is granted.Plaintiffs first amended complaint is dismissed.Defendants motion to dismiss 33 is denied without prejudice.Defendants motion to strike 45 is denied. Defendants need not take any further action with respect to this matter until notified by the court that action is required. (Plummer, M) Modified on 6/8/2016 (Plummer, M).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAAHDI ABDUL COLEMAN, 12 Plaintiff, 13 14 No. 2:13-cv-1753 KJM CKD P v. ORDER FRED FOULK, et al., 15 Defendants. 16 Plaintiff is a California prisoner proceeding pro se with an action for violation of civil 17 18 rights under 42 U.S.C. §1983. On November 3, 2015, defendants filed a motion seeking 19 dismissal of plaintiff’s remaining claims. Plaintiff responded to the motion by essentially 20 admitting that his pleadings are defective and by seeking leave to file a second amended 21 complaint, which plaintiff has already filed, in order to attempt to cure the deficiencies. The court has reviewed defendants’ motion to dismiss, and it appears the parties are 22 23 correct that at least some or parts of defendants’ arguments have merit. It also appears some or 24 all of the defects identified by defendants can be cured by amended pleadings. Considering leave 25 to amend pleadings should be given freely when justice so requires, Fed R. Civ. P. 15(a)(2), and 26 considering the court must generally give pro se litigants an opportunity to cure the deficiencies 27 in their pleadings, after the litigant has been informed of those deficiencies, see Ferdik v. 28 ///// 1 1 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the court will grant plaintiff’s motion for leave to 2 amend. 3 By separate order, the court will screen plaintiff’s second amended complaint pursuant to 4 the court’s obligation to do so under 28 U.S.C. § 1915A(a). Defendants’ pending motion to 5 dismiss will be denied without prejudice and defendants need take no further action until they are 6 notified by the court that further action is required. 7 In accordance with the above, IT IS HEREBY ORDERDED that: 8 1. Plaintiff’s motion for leave to file a second amended complaint (ECF No. 41) is 9 granted; 10 2. Plaintiff’s first amended complaint is dismissed; 11 3. Defendants’ motion to dismiss (ECF No. 33) is denied without prejudice; 12 4. Defendants’ motion to strike (ECF No. 45) is denied; and 13 5. Defendants need not take any further action with respect to this matter until notified 14 15 by the court that action is required. Dated: June 8, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 16 17 18 19 1 cole1753.mta 20 21 22 23 24 25 26 27 28 2

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