Diaz v. Fox et al

Filing 17

ORDER signed by Magistrate Judge Carolyn K. Delaney on 07/14/15 ordering the findings and recommendations filed 5/28/15 13 are partially vacated as follows: The first amended complaint is dismissed for failure to state a claim; and plaintiff is granted 30 days from the date of service of this order to file a second amended complaint. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MIGUEL DIAZ,

12

Plaintiff,

13
14

No. 2:14-cv-2705 JAM CKD P

v.

ORDER

R. FOX, et al.,

15

Defendants.

16
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

17
18

under 42 U.S.C. § 1983. On May 28, 2015, undersigned filed findings and a recommendation

19

that this action be dismissed with prejudice for failure to state a claim.
Plaintiff has filed objections to the findings and recommendation and seeks leave to file a

20
21

second amended complaint. In light of plaintiff’s request, the court will vacate its

22

recommendation that this action be dismissed with prejudice. Rather, the undersigned will

23

dismiss the First Amended Complaint with leave to amend a second time.

24

Accordingly, IT IS HEREBY ORDERED that:

25

1. The findings and recommendations filed May 28, 2015, are partially vacated as

26

follows:
2. The First Amended Complaint is dismissed for failure to state a claim; and

27
28

////
1

1

3. Plaintiff is granted thirty days from the date of service of this order to file a Second

2

Amended Complaint. Failure to file an amended complaint in accordance with this order will

3

result in a recommendation that this action be dismissed.

4

Dated: July 14, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

5
6
7
8
9
10

2/diaz2705.vac

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2