Opinion
Case No. 1:17-cv-00607-LJO-MJS (PC)
04-11-2018
AUBREY LEE BROTHERS, II, Plaintiff, v. CHITA BUENAFE, et al., Defendants.
ORDER VACATING FINDINGS AND RECOMMENDATIONS
(ECF NO. 16)
ORDER DENYING MOTION FOR EXTENSION OF TIME
(ECF NO. 21)
ORDER REQUIRING PLAINTIFF TO AMEND OR OTHERWISE RESPOND
THIRTY DAY DEADLINE
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. On February 28, 2018, the Court screened Plaintiff's second amended complaint and concluded it stated no cognizable claims. (ECF No. 16.) Accordingly, the undersigned issued findings and recommendations to dismiss the complaint with prejudice. (Id.)
On March 21, 2018, Plaintiff filed objections to the findings and recommendations. (ECF No. 20.) On April 2, 2018, he filed a motion for extension of time to file objections to the findings and recommendations. (ECF No. 21.)
Plaintiff's objections suggest that he may be able to state a cognizable claim based on the failure of some defendants to provide him treatment for a fracture that caused pain for a period of at least six months. In light of these objections, the Court will vacate its prior findings and recommendations and will afford Plaintiff a further opportunity to amend to incorporate these facts in a third amended complaint. As always, Plaintiff may forego amendment and notify the Court that he wishes to stand on his complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may elect to forego amendment). However, if he does so, the Court will re-screen the second amended complaint based solely on the allegations contained therein. Allegations contained only in the objections will not be considered. Local Rule 220 (complaint must be complete in itself without reference to prior pleadings).
Given this ruling, Plaintiff's motion for extension of time will be denied as moot, both on the ground that Plaintiff already has filed objections and because the findings and recommendations are being vacated.
Accordingly, it is HEREBY ORDERED that:
1. The Clerk's Office shall send Plaintiff a blank civil rights complaint form;
2. Within thirty (30) days from the date of service of this order, Plaintiff must:
a. File an amended complaint curing the deficiencies identified by the Court in this order, or
b. Notify the Court in writing that he wishes to stand on his complaint as written;
IT IS SO ORDERED.
3. Plaintiff's motion for extension of time is denied as moot; and
4. If Plaintiff fails to comply with this order, the undersigned will recommend the action be dismissed for failure to obey a court order and failure to prosecute.
Dated: April 11, 2018
/s/ Michael J . Seng
UNITED STATES MAGISTRATE JUDGE