United States District Court, E.D. California
ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS
(DOC. NO. 10)
Plaintiff
William Ray Huffman is a civil detainee proceeding pro
se and in forma pauperis in this civil rights
action brought 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
September 13, 2019, the assigned magistrate judge screened
plaintiff's complaint in this action and found that it
stated a cognizable claim against defendant Batra for
violation of the Fourteenth Amendment arising out of
plaintiff's medical care on July 15, 2017, but that
plaintiff had failed to state a cognizable claim against any
other defendant. (Doc. No. 8 at 7.) In the screening order,
plaintiff was given thirty (30) days from the date of service
of that order to either file a first amended complaint or
notify the court of his decision to proceed only on the
cognizable claim against defendant Batra. (Id.) The
court served the screening order on plaintiff by mail on
September 13, 2019. But, plaintiff did not file an amended
complaint nor did he notify the court of his decision whether
to proceed only on the cognizable claim.
Accordingly,
on October 30, 2019, the magistrate judge issued findings and
recommendations, recommending that this action proceed on
plaintiff's complaint, filed May 15, 2019 (Doc. No. 1),
against defendant Batra for violation of the Fourteenth
Amendment arising out of plaintiff's medical care on July
15, 2017, and that all other defendants and claims be
dismissed due to plaintiff's failure to state a claim
upon which relief can be granted. (Doc. No. 10 at 8.) Those
findings and recommendations were served on plaintiff by mail
on October 30, 2019 and contained notice that objections
thereto were to be filed within fourteen (14) days of service
of the findings and recommendations. (Id.) On
November 18, 2019, plaintiff filed objections to the pending
findings and recommendations. (Doc. No. 11.)
In
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), the undersigned has conducted a de
novo review of this case. Having carefully reviewed the
entire file, including plaintiff's objections to the
pending findings and recommendations, the undersigned will
decline to adopt the findings and recommendations for the
reasons explained below.
In his
objections, plaintiff asserts that he did not receive the
court's September 13, 2019 screening order until October
13, 2019. (Doc. 11 at 1.) While plaintiff was in the process
of researching how he could maintain his claims against
defendants Dr. Withrow and Dr. Hamerick, and believing
“that he had four or five days” left to comply
with the court's order, plaintiff received the pending
findings and recommendations. (Id.) Though plaintiff
does not explicitly request leave to amend his complaint,
such a request is implied in his objections, in which he
states that defendants Dr. Withrow and Dr. Hamerick
“are the two sole individuals who allow referrals to
out-side medical appointments, ” “there are no
subordinate employees that can allow an out-side medical
appointment to take place, ” and “they are
crucial [d]efendants within this 42 U.S.C. § 1983 for
the delay that has occurred.” (Id. at 2.) It
therefore appears that plaintiff wishes to amend his
complaint, and would have done so in response to the
court's screening order if he had timely received it.
Accordingly, the undersigned will decline to adopt the
pending findings and recommendations at this time and will
instead grant plaintiff leave to file a first amended
complaint.
Plaintiff
is cautioned that although the Federal Rules of Civil
Procedure adopt a flexible pleading policy, a complaint must
give the defendant fair notice of the plaintiffs claims and
must allege facts that state the elements of each claim
plainly and succinctly. Fed.R.Civ.P. 8(a)(2); Jones v.
Cmty. Redevelopment Agency of City of Los Angeles, 733
F.2d 646, 649 (9th Cir. 1984). Further, “the tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Plaintiff is also reminded that the court cannot
refer to a prior pleading in order to make a first amended
complaint complete. The first amended complaint will
supersede all previously filed complaints. See Loux v.
Rhay, 375 F.2d 55, 57 (9th Cir. 1967).
Accordingly,
1. The court declines to adopt the October 30, 2019 findings
and recommendations (Doc. No. 10);
2. Plaintiff is granted leave to file an amended complaint
within thirty (30) days from the date of service of this
order;
3. If plaintiff wishes to proceed only on the cognizable
claim identified in the court's September 13, 2019
screening order, then he is directed to notify the court of
his decision to do so within thirty (30) days from the date
of service of this order;
4. Any failure on plaintiff s part to either file an amended
complaint or notify the court of his decision to proceed only
on the cognizable claim against defendant Batra within the
time provided will likely result in dismissal of this action
due to his failure to comply with a court order; and
5. This matter is referred back to the assigned magistrate
judge for further proceedings ...