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Wheeler v. Smiles

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 19, 2010

JOHN FREDERICK WHEELER, PLAINTIFF,
v.
HEALTHY SMILES, ET. AL., DEFENDANTS.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER GRANTING AN EXTENSION OF TIME TO FILE AN AMENDED COMPLAINT

Plaintiff John Frederick Wheeler ("Plaintiff") is proceeding pro se and in forma pauperis with an action for damages and other relief concerning alleged civil rights violations pursuant to 42 U.S.C. § 1983 that he filed on October 8, 2009. (Doc. 1.) On November 17, 2009, the Court screened the complaint pursuant to 28 U.S.C. § 1915(e)(2) and issued an order dismissing the complaint for failure to state a cognizable claim. The Court granted Plaintiff thirty (30) days to amend his complaint. (Doc. 3.) On December 10, 2009, Plaintiff filed an amended civil rights complaint. (Doc. 4.) The First Amended Complaint ("FAC") was screened, but the deficiencies of the original complaint were not cured. On June 18, 2010, the Court again dismissed the complaint granting thirty (30) days leave to amend. (Doc. 6.) Plaintiff did not file an amended complaint.

On July 23, 2010, United States Magistrate Judge Sheila K. Oberto issued Findings and Recommendations that the action be dismissed based on Plaintiff's failure to amend the FAC in compliance with the Court's June 18, 2010, order. (Doc. 7.) On August 6, 2010, Plaintiff filed Objections to the Findings and Recommendations stating that he had not timely received the Court's orders through the mail and requested additional time to amend his complaint. (Doc. 8.) On September 2, 2010, the Court issued an order granting Plaintiff an additional thirty (30) days to file an amended complaint. (Doc. 10.)

On August 6, 2010, Plaintiff also filed a pleading that was labeled "Second Amended Complaint." (Doc. 9.) This pleading did not relate to the initial complaint or the FAC in that it did not arise out of related conduct or transactions set forth in the initial complaint or the FAC. For that reason, the Court ordered that the "Second Amended Complaint" be stricken, and allowed Plaintiff to resubmit the pleading to the Court and request that a new case be opened. (Doc. 11.)

On September 15, 2010, Plaintiff again filed Objections to the Magistrate Judge's July 23, 2010, Findings and Recommendations. (Doc. 12.) Plaintiff states that the Court misdirected his "Second Amended Complaint" by filing it in this case under case number 1:09-cv-1772-OWW-SKO. Plaintiff asserts that he did not include a case number with that pleading because he did not intend it to be associated with 1:09-cv-1772-OWW-SKO. He states that, as a result of the misfiling, he "has lost almost 30 days."

The stricken pleading has been filed as a new case bearing the caption "John Frederick Wheeler v. Social Security Administration et. al." with an assigned case number of 1:10-cv-01679-LJO-JLT.

The Court notes that the complaint in this matter still requires amendment. Following his request for additional time, Plaintiff was granted thirty (30) additional days to amend his complaint pursuant to the Court's September 2, 2010, order. As of the date of this order, Plaintiff has not yet filed an amended complaint. As Plaintiff's "Second Amended Complaint" was stricken from this case and refiled as a new case with a new case number, the Court will provide Plaintiff with additional time to amend the complaint in this matter. Plaintiff shall have until November 17, 2010, to file an amended complaint. If Plaintiff again fails to file an amended complaint, the Court will recommend that this action be dismissed for failure to state a claim upon which relief can be granted and for failure to comply with the Court's order.

Accordingly, IT IS HEREBY ORDERED THAT:

1. Plaintiff shall file an amended complaint on or before November 17, 2010; and

2. The Clerk of the Court shall serve this order on Plaintiff with a copy of the Court's June 18, 2010, order screening the complaint (Doc. 6).

IT IS SO ORDERED.

20101019

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