Canfield v. California Department of Corrections and Rehabilitation et al

Filing 21

ORDER signed by Magistrate Judge Dennis M. Cota on 9/6/2019 VACATING the 16 findings and recommendations issued 6/18/2019 and DENYING as unnecessary plaintiff's 19 motion for leave to amend. This action shall proceed on plaintiff's 7/31/2019 pleading which the Clerk shall designate as the second amended complaint. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONALD CANFIELD,

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No. 2:18-CV-1092-KJM-DMC-P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983.
On April 9, 2019, the court directed plaintiff to file a first amended complaint

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within 30 days. See ECF No. 12. As of June 18, 2019, plaintiff had not complied and the court

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issued findings and recommendations that this action be dismissed for lack of prosecution. See

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ECF No. 16. On June 19, 2019, plaintiff filed a first amended complaint. See ECF No. 17.

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Good cause appearing therefor, the June 18, 2019, findings and recommendations will be vacated.

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On July 18, 2019, plaintiff filed a motion for leave to amend. See ECF No. 19.

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Plaintiff filed another document entitled “First Amended Complaint” on July 31, 2019. See ECF

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No. 20. It is unclear from plaintiff’s motion for leave to amend whether he seeks to proceed on

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the June 19, 2019, pleading or the July 31, 2019, pleading.
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Procedurally, the June 19, 2019, pleading was filed in compliance with the court’s

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April 9, 2019, order dismissing plaintiff’s original complaint with leave to amend. Plaintiff’s July

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31, 2019, pleading was filed as-of-right pursuant to Federal Rule of Civil Procedure 15(a)(1). As

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such, plaintiff is not required to obtain leave of court to file the July 31, 2019, pleading.

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Plaintiff’s motion for leave to amend will, therefore, be denied as unnecessary. This action shall

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proceed on the pleading filed on July 31, 2019, which the Clerk of the Court will be directed to

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designate plaintiffs second amended complaint. The sufficiency of this pleading will be

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addressed by separate order.

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Accordingly, IT IS HEREBY ORDERED that:

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The findings and recommendations issued on June 18, 2019 (ECF No. 16),

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2.

Plaintiff’s motion for leave to amend (ECF No. 19) is denied as

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unnecessary; and

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3.

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are vacated;

This action shall proceed on plaintiff’s pleading filed on July 31, 2019,

which the Clerk of the Court is directed to designate plaintiff’s second amended complaint.

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Dated: September 6, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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