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Lewis v. Vasquez

United States District Court, E.D. California

June 20, 2017

LONNIE LEWIS, Plaintiff,
v.
J. VASQUEZ, et al., Defendants.

         ORDER VACATING FINDINGS AND RECOMMENDATIONS, DIRECTING CLERK OF COURT TO FILE AMENDED COMPLAINT, DIRECTING PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT OR NOTIFY THE COURT OF INTENT TO PROCEED ON CLAIMS FOUND TO BE COGNIZABLE, AND DENYING MOTION FOR EXTENSION OF TIME AS MOOT ECF NOS. 9, 10, 12

         Plaintiff Lonnie Lewis is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Plaintiff's first amended complaint, which was lodged on June 14, 2017.

         I. RELEVANT HISTORY

         Plaintiff filed the instant action on January 30, 2017. On April 19, 2017, the Court screened Plaintiff's complaint and directed Plaintiff to file an amended complaint or notify the Court of his intent to proceed on the claim found to be cognizable.

         On May 25, 2017, Plaintiff notified the Court of his intent to proceed on the claim found to be cognizable. Therefore, on May 30, 2017, the Court issued Findings and Recommendations recommending that this action proceed on Plaintiff's damages claim for retaliation against Defendant Vasquez and all other claims and Defendants be dismissed.

         On June 14, 2017, Plaintiff submitted a first amended complaint, which was lodged.

         Then, on June 19, 2017, Plaintiff filed a motion regarding objections to the Findings and Recommendations and a separate motion for an extension of time. In his June 19, 2017, filings, Plaintiff indicates that he submitted a first amended complaint and requests ruling on such complaint before filing objections to the pending Findings and Recommendations.

         II. DISCUSSION

         The Court will direct the Clerk of Court to file Plaintiff's first amended complaint which was lodged on June 14, 2017.

         Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party's pleading once as a matter of course twenty-one days after serving, or if a response was filed, within twenty-one days after service of the response. Fed.R.Civ.P. 15(a)(1). Otherwise, a party may amend only by leave of the court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Fed.R.Civ.P. 15(a).

         In this instance, because Plaintiff has not previously amended the complaint and no responsive pleading has been served, he is entitled to amend the complaint as a matter of course. Accordingly, the amended complaint will be filed, and the Court will simultaneously screen the amended complaint herein.

         III. COMPLAINT ALLEGATIONS

         Plaintiff names J. Vasquez (correctional officer), C. Stanley (correctional lieutenant), M. Biter, (Warden at Kern Valley State Prison [KVSP]), T.S. Arlitz (Associate Warden at KVSP), and M. Jiminez (correctional officer), as Defendants.

         On June 11, 2014, Plaintiff was placed in administrative segregation after being falsely accused of threatening staff. On this same date, Plaintiff received a Rules Violation Report for threatening staff. On this same date, Defendant Vasquez ...


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