United States District Court, E.D. California
March 31, 2014
ALEJANDRO JOSE MORALES, Plaintiff,
H. SHERWOOD, et al., Defendants.
ORDER VACATING FINDINGS AND RECOMMENDATIONS OF MARCH 18, 2014 (Doc. 14.) ORDER FOR PLAINTIFF TO EITHER: (1) FILE SECOND AMENDED COMPLAINT, OR (2) NOTIFY THE COURT THAT HE IS WILLING TO PROCEED ONLY AGAINST DEFENDANTS SHERWOOD AND COONTZ FOR EXCESSIVE FORCE, DEFENDANT COONTZ FOR FAILURE TO PROTECT, AND DEFENDANT SHERWOOD FOR RETALIATION, AND TO DISMISS ALL OTHER CLAIMS AND DEFENDANTS FROM THIS ACTION THIRTY DAY DEADLINE
GARY S. AUSTIN, Magistrate Judge.
Alejandro Jose Morales ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on October 1, 2013. (Doc. 1.) The case now proceeds on the First Amended Complaint filed by Plaintiff on December 2, 2013. (Doc. 9.) The First Amended Complaint names Correctional Officer H. Sherwood, C/O G. Coontz, Lieutenant A. Smith, and Registered Nurse N. Gray as defendants, and alleges claims for excessive force, failure to protect, inadequate medical care, and retaliation.
The court screened Plaintiff's First Amended Complaint pursuant to 28 U.S.C. § 1915A and found that it states cognizable claims under § 1983 against defendants Sherwood and Coontz for excessive force, against defendant Coontz for failure to protect, and against defendant Sherwood for retaliation, and that the First Amended Complaint states no other cognizable claims. (Doc. 12.) On March 5, 2014, Plaintiff was granted leave to either file an amended complaint or notify the court that he is willing to proceed only on the claims found cognizable by the court. (Id.) On March 14, 2014, Plaintiff filed a notice informing the court that he is willing to proceed only on the cognizable claims against defendants Sherwood and Coontz, and he does not wish to file an amended complaint. (Doc. 13.)
In response to Plaintiff's notice, the court entered findings and recommendations on March 18, 2014, recommending that this action proceed only on the cognizable claims found by the court against defendants Sherwood and Coontz, and that all other claims and defendants be dismissed. (Doc. 14.) On March 28, 2014, Plaintiff filed objections to the findings and recommendations, arguing that he did not agree to dismiss his claim for inadequate medical claim. (Doc. 17.) Plaintiff claims he can prove that the institution was aware of a specific harm and that RN L. Gilera disregarded that harm.
Plaintiff did not name RN L. Gilera as a defendant in the First Amended Complaint. Therefore, Plaintiff cannot proceed with the First Amended Complaint against RN L. Gilera. To proceed against RN L. Gilera, Plaintiff must file a Second Amended Complaint containing all of the claims and defendants he wishes to proceed wtih, including his allegations and claims against RN L. Gilera. The Second Amended Complaint will supercede the First Amended Complaint, and therefore, before service can go forward, the court will be required to screen the Second Amended Complaint to determine if Plaintiff states any cognizable claims.
Based on Plaintiff's objections, the findings and recommendations of March 18, 2014 shall be vacated. Plaintiff shall be granted time to either file a Second Amended Complaint, or notify the court that he is willing to proceed with the First Amended Complaint only against defendants Sherwood and Coontz for excessive force, against defendant Coontz for failure to protect, and against defendant Sherwood for retaliation, and to dismiss all other claims and defendants from this action.
III. CONCLUSION AND ORDER
Based on the foregoing, it is HEREBY ORDERED that:
1. The findings and recommendations entered on March 18, 2014, are VACATED;
2. The Clerk's Office shall send Plaintiff a civil rights complaint form;
3. Within thirty (30) days from the date of service of this order, Plaintiff shall either:
(1) File a Second Amended Complaint curing the deficiencies in the First Amended Complaint identified in the court's order of March 5, 2014, or
(2) Notify the Court in writing that he does not wish to file an amended complaint and is instead willing to proceed only against defendants Sherwood and Coontz for excessive force, against defendant Coontz for failure to protect, and against defendant Sherwood for retaliation, and to dismiss all other claims and defendants from this action;
4. Should Plaintiff choose to amend the complaint, Plaintiff shall caption the amended complaint "Second Amended Complaint" and refer to the case number 1:13-cv-01582-AWI-GSA-PC; and
5. If Plaintiff fails to comply with this order, this action will be dismissed for failure to comply with a court order.
IT IS SO ORDERED.