Opinion
1:19-cv-00461-AWI-GSA-PC
02-02-2021
JERRY DILLINGHAM, Plaintiff, v. J. GARCIA, et al., Defendants.
ORDER IN RESPONSE TO PLAINTIFF'S MOTION FOR ADMINSTRATIVE RELIEF
(ECF No. 35.)
I. BACKGROUND
Jerry Dillingham ("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 9, 2019, Plaintiff filed the Complaint commencing this action. (ECF No. 1.)
On June 1, 2020, the court issued a screening order requiring Plaintiff to either: (1) file an amended complaint not exceeding 25 pages; or, (2) notify the court of his willingness to proceed only with the excessive force claim against defendants Garcia and the medical claims against defendants Harmon and Dozer, which were found cognizable by the court. (ECF No. 19.) On August 27, 2020, Plaintiff filed the First Amended Complaint which was 41 pages in length. (ECF No. 31.) On August 30, 2020, the court issued an order striking the First Amended Complaint for Plaintiff's failure to comply with the screening order and granted Plaintiff 30 days in which to file a Second Amended Complaint, not exceeding 25 pages. (ECF No. 32.) On September 8, 2020, Plaintiff filed the Second Amended Complaint. (ECF No. 34.)
On September 30, 2020, Plaintiff filed a motion for administrative relief. (ECF No. 35.)
II. PLAINTIFF'S MOTION
Plaintiff notifies the court that when he filed the Second Amended Complaint he inadvertently titled it "First Amended Complaint." Due to this error Plaintiff is concerned that the court will find that he failed to comply with the court's August 30, 2020 order which granted him leave to file a Second Amended Complaint. Plaintiff also requests confirmation that the court received the amended complaint, which was dated September 3, 2020.
The court received and filed Plaintiff's amended complaint on September 8, 2020 and construes it as the Second Amended Complaint despite its title. The Court considers that Plaintiff has complied with the August 30, 2020 order which granted him leave to file the Second Amended Complaint. The Second Amended Complaint now awaits the court's screening under 28 U.S.C. § 1915A.
III. CONCLUSION
Based on the above, Plaintiff's motion for administrative relief, filed on September 30, 2020, is resolved. IT IS SO ORDERED.
Dated: February 2 , 2021
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE