Salinas v. Pogue

Full title: MATTHEW V. SALINAS, Plaintiff, v. KENNETH J. POGUE, et al., Defendants.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Jan 23, 2018

1:16-cv-00520-DAD-GSA-PC (E.D. Cal. Jan. 23, 2018)

Opinion

1:16-cv-00520-DAD-GSA-PC

01-23-2018

MATTHEW V. SALINAS, Plaintiff, v. KENNETH J. POGUE, et al., Defendants.

Gary S. Austin UNITED STATES MAGISTRATE JUDGE

ORDER VACATING FINDINGS AND RECOMMENDATIONS OF JANUARY 8, 2018
(ECF No. 40.) ORDER GRANTING MOTION TO FILE THIRD AMENDED COMPLAINT
(ECF No. 43.) ORDER DEEMING THIRD AMENDED COMPLAINT TIMELY FILED
(ECF No. 44.)

Matthew V. Salinas ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On April 14, 2016, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On November 17, 2016, Plaintiff filed the First Amended Complaint. (ECF No. 25.) On February 22, 2017, Plaintiff filed the Second Amended Complaint. (ECF No. 29.)

On September 21, 2017, the court screened Plaintiff's Second Amended Complaint pursuant to 28 U.S.C. § 1915A and found that it states a cognizable ADA claim against defendant C/O Gomness in his official capacity, but no other claims. (ECF No. 32.) On September 1, 2017, Plaintiff was granted leave to either file a Third Amended Complaint or notify the Court that he is willing to proceed only on the claim found cognizable by the Court and related state law claims. (Id.) On December 20, 2017, Plaintiff filed a notice informing the Court that he is willing to proceed only on the cognizable ADA claim and related state law claims against defendant C/O Gomness. (ECF No. 38.) On January 8, 2018, the court entered findings and recommendations to dismiss the remaining claims and defendants. (ECF No. 40.)

On January 19, 2018, Plaintiff filed a motion to file a Third Amended Complaint and submitted the Third Amended Complaint, which was filed by the Clerk. (ECF Nos. 43, 44.) Plaintiff explains that he wanted to file the Third Amended Complaint in response to the court's September 1, 2017, order, which granted him leave to file a Third Amended Complaint within thirty days. However, Plaintiff was released from prison on or about November 29, 2017, and left without a copy of the Third Amended Complaint he had prepared. Plaintiff did not know how to proceed, so he filed the notice on December 20, 2017, indicating that he was willing to proceed only on the cognizable ADA claim and related state law claims against defendant C/O Gomness. Plaintiff recently obtained his copies of the Third Amended Complaint and now seeks leave to file it.

In light of Plaintiff's notice of his circumstances and the filing of his Third Amended Complaint on January 19, 2018, the court finds good cause to vacate the findings and recommendations, grant Plaintiff's leave to file the Third Amended Complaint, and deem the Third Amended Complaint timely filed.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations entered on January 8, 2018, are VACATED;

2. Plaintiff's motion to file a Third Amended Complaint, filed on January 19, 2018, is GRANTED;

3. Plaintiff's Third Amended Complaint, filed on January 19, 2018, is deemed timely filed; and

4. The court shall screen the Third Amended Complaint in due course.

IT IS SO ORDERED.

Dated: January 23 , 2018

/s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE