Opinion
1:20-cv-01802-NE-EPG (PC)
06-15-2021
ANTHONY BARRETT, Plaintiff, v. A. CIOLLI, et al., Defendants.
ORDER VACATING FINDINGS AND RECOMMENDATIONS
(ECF NO. 10)
Plaintiff Anthony Barrett (“Plaintiff”) is a federal inmate proceeding pro se and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
Plaintiff filed the complaint commencing this action on December 22, 2020. (ECF No. 1.) On April 5, 2021, the Court screened Plaintiff's complaint and found that it failed to state any cognizable claims. (ECF No. 8.) The Court gave Plaintiff thirty days to either “a. File a First Amended Complaint; or b. Notify the Court in writing that he wants to stand on his complaint.” (Id. at 16.) On February 19, 2021, Plaintiff filed his First Amended Complaint. (ECF No. 9.)
On May 4, 2021, the Court entered findings and recommendations recommending that this action proceed on Plaintiff's Fifth Amendment claims for deprivation of property and deprivation of liberty without due process against Does 1 through 10 and on Plaintiff's Eighth Amendment claims for unconstitutional conditions of confinement and deliberate indifference to serious medical needs against Does 1 through 10. (ECF No. 10.) The Court further recommended that all other claims and defendants be dismissed for failure to state a claim upon which relief may be granted. (Id.) Plaintiff was provided an opportunity to file objections to the findings and recommendations. (Id.)
On May 21, 2021, Plaintiff filed his objections to the Court's findings and recommendations. (ECF No. 12.) Plaintiffs objections contained new factual allegations that were not included in the original complaint or the First Amended Complaint. (See ECF Nos. 1, 9.) However, the Court could not consider factual allegations in Plaintiffs objections in deciding whether Plaintiff stated any legal claims. The Court therefore entered an order on May 24, 2021, granting Plaintiff leave to file an amended complaint. (ECF No. 13.) The Court's order explained that it was not vacating the findings and recommendations entered on May 4, 2021 at that time but may do so if Plaintiff filed an amended complaint. (Id.)
On June 9, 2021, Plaintiff filed a Second Amended Complaint. (ECF No. 16.) In light of the Second Amended Complaint, the Court will vacate the findings and recommendations entered on May 4, 2021, and will screen Plaintiffs Second Amended Complaint in due course.
Accordingly, IT IS HEREBY ORDERED that the findings and recommendations entered on May 4, 2021 (ECF No. 10) are VACATED.
IT IS SO ORDERED.