Opinion
1:19-cv-01343-DAD-HBK
08-10-2021
YAKINI DEANDRE BYRD, Plaintiff, v. F. SERRANO, Defendant.
ORDER DEEMING PLAINTIFF'S FIRST AMENDED COMPLAINT OPERATIVE COMPLAINT AND DIRECTING DEFENDANT TO FILE AMENDED ANSWER OR STAND ON HIS ANSWER
(DOC. NO. 47)
HELENA M. BARCH-KUCHTA, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner, initiated this action by filing a pro se civil rights complaint under 42 U.S.C. § 1983 on September 23, 2019. (Doc. No. 1, Complaint). On February 25, 2020, the previously assigned magistrate judge screened Plaintiff's Complaint and determined it stated a claim for excessive force against the sole defendant, subsequently identified as F. Serrano. (Doc. Nos. 15, 23). On September 3, 2020, Defendant Serrano file an Answer to the Complaint. (Doc. No. 28). On April 1, 2021, after obtaining leave, Plaintiff filed a First Amended Complaint (FAC). (Doc. Nos. 45, 47). The FAC essentially contains the same allegations as set forth in the Complaint but contains an additional allegation that Defendant's actions violated a prison policy. (Doc. No. 47 at 3).
The Court adopts the previous screening order to the Complaint as though set forth at length herein and finds that the FAC states a cognizable claim for excessive force against the sole defendant identified therein and subsequently identified as F. Serrano. (Doc. Nos. 15, 22). Defendant Serrano has already been served in this action and filed an Answer. The Court notes in his previous Answer, Defendant denied violating any CDCR policy. (Doc. No. 28, ¶ 4).
Accordingly, it is ORDERED:
Defendant Serrano shall respond to Plaintiffs First Amended Complaint (Doc. No. 47) within twenty (20) days of the filed date of this Order. Alternatively, if Defendant Serrano intends to stand on his present Answer (Doc. No. 28) as his Answer to the Amended Complaint he shall file a notice of his intent to do so and the new allegation in the First Amended Complaint will be deemed denied.