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Wayne L. Pickering v. Ken Clark

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 15, 2012

WAYNE L. PICKERING,
PLAINTIFF,
v.
KEN CLARK, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING AS MOOT PLAINTIFF'S MOTION TO STAY ORDER REGARDING SERVICE DOCUMENTS (ECF No. 14) ORDER VACATING FINDINGS AND RECOMMENDATIONS AND GRANTING PLAINTIFF LEAVE TO FILE SECOND AMENDED COMPLAINT (ECF Nos. 10, 11) AMENDED COMPLAINT DUE WITHIN 30 DAYS

Plaintiff Wayne L. Pickering ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On September 11, 2012, the undersigned issued Findings and Recommendations, recommending dismissal of certain claims and Defendants from this action. The undersigned recommended dismissal of Plaintiff's state law claim of negligence for failure to plead compliance with the California Tort Claims Act. On October 12, 2012, Plaintiff filed his objections. Regarding his state law claim, Plaintiff contends that he did comply with the California Tort Claims Act, including as an exhibit a letter from the Victim Compensation and Government Claims Board regarding his claim. Plaintiff had previously included the letter with his original complaint, but failed to do so in his amended complaint.

It appears that Plaintiff may have complied with the California Tort Claims Act. However, no such pleading or exhibit was included in Plaintiff's first amended complaint. In the interest of justice, the Court will vacate the September 11, 2012 Findings and Recommendations and grant Plaintiff leave to file a second amended complaint. The Court reminds Plaintiff of Local Rule 220, which requires that every pleading to which an amendment or supplement is permitted as a matter of right or has been allowed by court order shall be retyped and filed so that it is complete in itself without reference to the prior or superseded pleading. No pleading shall be deemed amended or supplemented until this Rule has been complied with. All changed pleadings shall contain copies of all exhibits referred to in the changed pleading.

The Court will screen Plaintiff's second amended complaint pursuant to 28 U.S.C. § 1915A(a) and § 1915(e)(2)(B). If Plaintiff fails to timely file a second amended complaint, it will be deemed a waiver of the opportunity to file an amended complaint.

Because the Court will grant Plaintiff leave to file a second amended complaint, Plaintiff's motion to stay the Court's order regarding service documents, filed October 12, 2012, is moot.

Accordingly, it is HEREBY ORDERED that:

1. The September 11, 2012 Findings and Recommendations is vacated;

2. The order regarding completion of service documents, issued September 17, 2012, is vacated;

3. Plaintiff's motion to stay the Court's order regarding completion of service documents, filed October 12, 2012, is denied as moot;

4. The Clerk of the Court is directed to send Plaintiff a complaint form; and

5. Plaintiff is granted thirty (30) days from the date of service of this order in which to file a second amended complaint, complete in itself without reference to the prior pleading.

IT IS SO ORDERED.

20121015

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