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Cohea v. Adams

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 5, 2009

DANNY JAMES COHEA, PLAINTIFF,
v.
D. ADAMS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

ORDER VACATING FINDINGS AND RECOMMENDATIONS AND REQUIRING PLAINTIFF EITHER TO FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE RESPONSE DUE WITHIN 30 DAYS

Plaintiff Danny James Cohea ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

On February 26, 2009, the court screened Plaintiff's complaint and gave Plaintiff to option to either notify the court of his willingness to proceed on the claims found cognizable by the screening order, or to file an amended complaint. On March 30, 2009, the court entered a Findings and Recommendations recommending that the action be dismissed for Plaintiff's failure to obey the February 26 order. The same day, Plaintiff's response to the February 26 order was entered. The court's Findings and Recommendations appear to have been entered before Plaintiff's response was received. As such, the court HEREBY VACATES its March 30, 2009 Findings and Recommendation.

Plaintiff's response to the February 26 order is ambiguous and Plaintiff is asked to clarify his intentions. Plaintiff asks the court to both (1) proceed on the claims found to be cognizable and (2) reconsider Plaintiff's remaining claims. Plaintiff contends that the court erroneously found that Plaintiff's claims against Defendant Guzman and Plaintiff's Third Cause of Action were not cognizable. Plaintiff may file an amended complaint clarifying his claims against Defendant Guzman and his Third Cause of Action. If Plaintiff opts to file an amended complaint clarifying his claims, the amended complaint must be complete in itself. and may not refer back to his original complaint. Local Rule 15-220. Claims found cognizable in Plaintiff's original complaint must be completely restated in his amended complaint. Alternatively, Plaintiff may notify the court that he wishes to proceed only on the claims found cognizable in the February 26 screening order.

Accordingly, it is HEREBY ORDERED that:

1. The court's March 30, 2009 Findings and Recommendations be VACATED;

2. Within thirty (30) days from the date of service of this order, Plaintiff must either:

a. File an amended complaint, or

b. Notify the Court in writing that he does not wish to file an amended complaint and wishes to proceed on the claims found cognizable in the February 26 screening order; and

3. If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey a court order.

IT IS SO ORDERED.

20090505

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