Carreon v. Abdur-Rahman et al

Filing 31

ORDER signed by Magistrate Judge Kendall J. Newman on 10/16/2018 DIRECTING the Clerk to STRIKE plaintiff's 28 amended complaint; this action shall proceed on plaintiff's original complaint; and defendants S. Abdur-Rahman and B. Lee shall file a responsive pleading within thirty days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTONIO CARREON,

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No. 2:17-cv-1292 TLN KJN P

Plaintiff,
v.

ORDER

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S. ABDUR-RAHMAN, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis. On

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September 28, 2018, defendants’ motion to dismiss was granted in part and denied in part.

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Plaintiff was granted leave to amend to attempt to state a retaliation claim, or he could choose to

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proceed on his original complaint based solely on his eighth Amendment deliberate indifference

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claims. On September 18, 2018, plaintiff filed an amended complaint raising only his deliberate

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indifference claims, but asking the court to incorporate his entire original complaint, including its

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exhibits, in to his amended complaint. Plaintiff makes clear his intention to abandon his

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retaliation claim against defendant Abdur-Rahman; indeed, he requests to proceed on his original

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complaint based solely on his Eighth Amendment deliberate indifference claims as to both

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defendants. (ECF No. 28.)

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Plaintiff’s amended complaint fails to allege the specific facts contained in his original
complaint, particularly in connection with defendant Lee. But in light of plaintiff’s clear
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intention to proceed with his Eighth Amendment claims set forth in the original complaint, which

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the undersigned previously found stated potentially cognizable claims, the undersigned will not

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require plaintiff to amend again. Rather, the undersigned strikes plaintiff’s amended complaint,

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and finds that this action proceeds on plaintiff’s original complaint solely as to plaintiff’s Eighth

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Amendment claims against defendants S. Abdur-Rahman and B. Lee.

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As previously found, the original complaint states potentially cognizable Eighth

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Amendment claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the

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allegations of the complaint are proven, plaintiff has a reasonable opportunity to prevail on the

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merits of this action.

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

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1. The Clerk of the Court is directed to strike plaintiff’s amended complaint (ECF No.

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28);

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2. This action shall proceed on plaintiff’s original complaint; and

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3. Defendants S. Abdur-Rahman and B. Lee shall file a responsive pleading within thirty

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days from the date of this order.

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Dated: October 16, 2018

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/carr1292.1

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