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Luis V. Rodriguez v. Cdcr

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 19, 2012

LUIS V. RODRIGUEZ,
PLAINTIFF,
v.
CDCR, ET. AL,
DEFENDANTS.

The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S REQUEST TO STRIKE THE FIRST AMENDED COMPLAINT, VACATE THE ORDER DISMISSING COMPLAINT AND ISSUE ORDER RE-OPENING THE CASE (Docs. 10-14)

Plaintiff is a prisoner proceeding pro se and in forma pauperis in an action pursuant to 42 U.S.C. § 1983. Before this Court are two requests by Plaintiff to vacate the Court's order dismissing his matter. The pleading filed by Plaintiff on September 7, 2012 is a letter and not a motion. (Doc. 13). Since the Court can only act upon formal motions for relief, the Court disregards Plaintiff's September 7, 2012 letter. (Doc. 13). The second pleading filed by Plaintiff on September 10, 2012, is an "Ex Parte Motion to Alter/Vacate Judgment of Dismissal." The Court will deem Plaintiff's September 10, 2012 pleading as a Motion to Strike the August 24, 2012 pleading docketed as a First Amended Complaint and a Motion to Vacate the August 29, 2012 Order Dismissing the First Amended Complaint without leave to amend, along with the corresponding Judgment entered August 29, 2012. (Doc. 12). For the reasons set forth below, the Court GRANTS Plaintiff's request to strike the First Amended Complaint, filed on August 24, 2012 and GRANTS Plaintiff's request to vacate the Court's August 29, 2012 order dismissing the case and the corresponding judgment closing the case. (Doc. 11-12). 3

On August 24, 2012, the Court received a document filed by Plaintiff that was docketed as a First Amended Complaint ("FAC"). (Doc. 10). The Court screened the FAC and by order filed August 29, 2012, entered a judgment dismissing Plaintiff's case without leave to amend. (Doc. 11 and 12).

On September 10, 2012, Plaintiff filed a Motion to Vacate the dismissal. (Doc. 14). In his motion, he explained that he did not intend the document received by the Court on August 24, 2012 to 9 be filed as an amended pleading in this case. Rather, he intended it to be a new action relating to a case he had been litigating in the Sacramento District Court. (Doc. 14). Plaintiff states that he had no intention of filing any amended pleading in the action pending in this Court, as he did not label the pleading as an "Amended Complaint," nor did he place any case number on the pleading. (Doc. 14).

Given that Plaintiff did not intend the August 24, 2012 filing to be docketed as an amended pleading in this case, the Court will strike the First Amended Complaint, filed August 24, 2012, vacate its August 29, 2012 order dismissing Plaintiff's Complaint and the Judgment entered the same date (Docs. 11 and 12), and will direct the clerk of the court to re-open this case.

Once the case is re-opened, the Court will proceed to screen the Complaint filed by Plaintiff on May 9, 2012. (Doc. 1).

Based upon the foregoing, it is HEREBY ORDERED:

1. The First Amended Complaint filed August 24, 2012 is STRIKEN from the record.

2. The Order Dismissing Plaintiff's First Amended Complaint issued August 29, 2012 is VACATED;

3. The Judgment Order Dismissing Plaintiff's case entered August 29, 2012 is VACATED;

4. The Clerk of the Court is directed to RE-OPEN the case.

IT IS SO ORDERED.

20120919

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