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Andreas v. Cate

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 29, 2009

NICOLAS DAVID ANDREAS, PLAINTIFF,
v.
MATTHEW CATE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On June 26, 2009, the court issued an order screening the original complaint. The court found that claim one and four, alleging Eighth Amendment and state law violations against defendants Johnson, Martinez, McCarthy, Bond and Thompson stated colorable claims for relief. The court separately recommended dismissal of claims two and three on grounds that they raised claims unrelated to those alleged in claim one. The court also found that the portion of claim two alleging an Eighth Amendment violation based on inadequate supervision was not colorable.

On July 20, 2009, plaintiff filed a motion for leave to amend and objections to the findings and recommendations. Fed. R. Civ. P. 15. Good cause appearing, the court will vacate the findings and recommendations and allow plaintiff to file an amended complaint. If the amended complaint includes the Eighth Amendment claim found colorable in the June 26, 2009, order, plaintiff may not include any of the unrelated claims the court recommended dismissal of. Nor should plaintiff include any new claims that are unrelated to the Eighth Amendment claim. If plaintiff includes unrelated claims, the court will again recommend their dismissal.

Accordingly, IT IS HEREBY ORDERED that:

1. The June 26, 2009, findings and recommendations are vacated;

2. Plaintiff's July 20, 2009, motion to amend is granted;

3. Plaintiff is granted thirty days from the date of this order to file an amended complaint.

20090729

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