Ellis v. Foulk, et al.

Filing 21

ORDER signed by Magistrate Judge Allison Claire on 11/30/2015 DISREGARDING plaintiff's 20 third amended complaint and this action shall remain CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT ELLIS,

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No. 2:14-cv-0802 AC P
Plaintiff,

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v.

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F. FOULK, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. This action was dismissed without prejudice on November 9, 2015, after plaintiff

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failed to file a third amended complaint. ECF No. 18. The court now has before it plaintiff’s

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third amended complaint, filed November 18, 2015.1 ECF No. 20.

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On August 5, 2015, the court screened plaintiff’s second amended complaint and

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dismissed it with leave to amend. ECF No. 16. Plaintiff was given thirty days from the filing of

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the screening order to file a third amended complaint. Id. On September 24, 2015, the court

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issued an order finding that plaintiff had failed to file a third amended complaint within the thirty

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day period. ECF No. 17. Plaintiff was advised that he had an additional thirty days to file his

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third amended complaint and that failure to comply would result in dismissal of his case. Id. On

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Since plaintiff is proceeding pro se, he is afforded the benefit of the prison mailbox rule. See
Houston v. Lack, 487 U.S. 266, 276 (1988).
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November 9, 2015, the court found that plaintiff had again failed to file an amended complaint

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within the time provided or otherwise respond to the court’s orders. ECF No. 18. This action

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was therefore dismissed without prejudice. Id. Final judgment was entered on November 9,

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2015. ECF No. 19. On November 18, 2015, plaintiff filed a third amended complaint. ECF No.

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20.

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The third amended complaint filed by plaintiff neither offers an explanation for its

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untimeliness nor addresses the Heck2 bar outlined in the August 5, 2015 screening order. Plaintiff

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has provided no basis for relief for judgment. Accordingly, IT IS HEREBY ORDERED that

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plaintiff’s third amended complaint will be disregarded and this action shall remain closed.

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DATED: November 30, 2015

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See Heck v. Humphrey, 512 U.S. 477 (1994).
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