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Kevin Gunn v. James Tilton

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 22, 2011

KEVIN GUNN,
PLAINTIFF,
v.
JAMES TILTON, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS Doc. 66 ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE AMENDED COMPLAINT Doc. 50

ORDER GRANTING MOTION TO STRIKE AMENDED COMPLAINT Doc. 54 ORDER STRIKING AMENDED COMPLAINT FILED ON NOVEMBER 29, 2010 Doc. 52 ORDER DIRECTING DEFENDANTS TO FILE AN AMENDED MOTION FOR SUMMARY JUDGMENT OR FILE INTENT NOT TO AMEND / (THIRTY-DAY DEADLINE)

Plaintiff Kevin Gunn ("Plaintiff") is a state prisoner proceeding in forma pauperis ("IFP") in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On July 20, 2011, the Magistrate Judge filed a Findings and Recommendations herein which was served on the Plaintiff and which contained notice to the Plaintiff that any objections to the Findings and Recommendations were to be filed within thirty days. Doc. 66. After being granted extensions of time, Plaintiff filed an objection to the Findings and Recommendations on December 21, 2011.

In his objection, Plaintiff asserts that since the original order was ambiguous and that he has met the heightened pleading standard, his second amended complaint should not be stricken from the record. Doc. 77. Given the fact that: 1) discovery had closed and Defendants had filed a motion for summary judgment before Plaintiff ever filed a motion to amend; 2) the order permitting the initial amendment was limited to clarification and not contemplate attaching additional exhibits; and 3) Plaintiff's amendment would unfairly prejudice Defendants, the Court finds that striking the second amended complaint is warranted.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file and Plaintiff's objections, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed July 20, 2011, is adopted in full;

2. Defendants' motion to strike is granted to the extent that it is consistent with the findings and recommendations (Doc. 54);

3. Plaintiff's additional Second Amended Complaint, filed on October 25, 2010 is hereby stricken from the record (Doc. 52);

4. Plaintiff's motion for extension of time to file the second amended complaint is denied as moot (Doc. 50); and

5. Defendants are given thirty (30) days to amend/supplement their motion for summary judgment or to file a notice of intent not to supplement.

IT IS SO ORDERED.

20111222

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