Opinion
No. 1:19-cv-01662-DAD-SAB (PC)
05-07-2020
RANDY JAMES GEREN, Plaintiff, v. R. FISHER, et al., Defendants.
ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS AND GRANTING PLAINTIFF LEAVE TO FILE A SECOND AMENDED COMPLAINT
(Doc. No. 20)
Plaintiff Randy James Geren is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On March 4, 2020, the assigned magistrate judge issued findings and recommendations recommending that this action be dismissed due to plaintiff's failure to state a cognizable claim for relief. (Doc. No. 20.) In particular, the magistrate judge found that plaintiff's second amended complaint (Doc. No. 19) was identical to his first amended complaint, and thus suffered from the same deficiencies identified by the magistrate judge in the February 19, 2020 screening order. (Id. at 5.) The magistrate judge also found that granting further leave to amend would be futile because the allegations in plaintiff's original, first amended, and second amended complaints all failed to state a claim for relief, despite the guidance provided to plaintiff in the court's screening orders regarding the pleading and legal standards applicable to the claims he was attempting to assert. (Id. at 5-6.) The pending findings and recommendations were served on plaintiff and contained notice that any objections thereto were to be filed within twenty-one (21) days after service. (Id. at 6.) After receiving an extension of time to do so, plaintiff timely filed objections to the pending findings and recommendations on April 17, 2020. (Doc. No. 23.)
In his objections, plaintiff explains that he did not actually intend for his filing to be construed as a second amended complaint, and that his intention was to provide the court with a copy of his first amended complaint because he mistakenly believed the court had not received it. (Id. at 1-2.) Specifically, plaintiff states in his objections that the reason he submitted/filed a copy of the first amended complaint on February 25, 2020 was because he did not receive his conformed copy from the court confirming receipt of his filing and the court sent him information that led to his misunderstanding. (Id.) Plaintiff requests leave to file a (true) second amended complaint and asserts that he is able to cure the deficiencies in his first amended complaint. (Id. at 7.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, the undersigned declines to adopt the pending findings and recommendations at this time, without evaluating or reaching any determination as to the analysis therein. Instead, and out of an abundance of caution, plaintiff will be granted one final opportunity to file a second amended complaint.
The undersigned will also direct the Clerk of the Court to strike Document No. 19 from the docket in this case, which was entered on February 27, 2020 as a "Second Amended Complaint," and which plaintiff now represents to the court was merely a copy of his first amended complaint.
Accordingly,
1. The court declines to adopt the findings and recommendations issued on March 4, 2020 (Doc. No. 20);/////
2. Plaintiff is granted leave to file a second amended complaint within fourteen days from the date of service of this order;
3. Any failure on plaintiff's part to file a second amended complaint within the time provided will likely result in dismissal of this action due to his failure to comply with a court order;IT IS SO ORDERED.
4. This matter is referred back to the assigned magistrate judge for further proceedings consistent with this order; and
5. The Clerk of the Court is directed to strike Doc. No. 19 from the docket in this case.
Dated: May 7 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE