Lavery v. Dhillon

Filing 137

ORDER signed by Magistrate Judge Allison Claire on 7/10/17 ordering The findings and recommendations filed June 9, 2017 135 are VACATED. Plaintiff must file a third amended complaint within thirty days of the date of this orders entry. Any requests for extension of time with respect to the foregoing deadline must be accompanied by a written statement explaining what steps plaintiffs counsel has undertaken to submit an adequate complaint.(Plummer, M) Modified on 7/11/2017 (Plummer, M).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH LAVERY,

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No. 2:13-cv-2083 MCE AC P

Plaintiff,
v.

ORDER

B. DHILLON et al.,

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Defendants.

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Plaintiff is a state prisoner who, represented by counsel, is proceeding with a civil rights

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action pursuant to 42 U.S.C. § 1983. On June 9, 2017, the court recommended that plaintiff’s

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Eighth Amendment deliberate indifference claims against defendants Dhillon, Rading, Ditomas,

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and Clark be dismissed without further leave to amend. ECF No. 135. The court so

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recommended after finding that plaintiff had been given adequate opportunities to state a

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cognizable claim against these defendants, but had failed to do so. Id. at 4-5. On June 27, 2017,

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plaintiff’s counsel filed objections to the recommendations in which he acknowledged that the

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second amended complaint was inadequately plead with respect to the claims against the

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aforementioned defendants. ECF No. 136 at 2. Counsel stated, however, that this inadequacy

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was due to the unavailability of certain documents which were removed from plaintiff’s cell by

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correctional officers. Id. Consequently, counsel asks that the dismissal be with leave to amend.

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Id. at 3.
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IT IS THEREFORE ORDERED that:

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1.

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The findings and recommendations filed June 9, 2017 (ECF No. 135) are

VACATED;
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Plaintiff must file a third amended complaint within thirty days of the date of this

order’s entry;
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Any requests for extension of time with respect to the foregoing deadline must be

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accompanied by a written statement explaining what steps plaintiff’s counsel has undertaken to

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submit an adequate complaint.

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DATED: July 10, 2017

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