-KJN (PC) Edwards v. High Desert State Prison et al, No. 2:2010cv03461 - Document 22 (E.D. Cal. 2011)

Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 6/7/11 VACATING 17 FINDINGS AND RECOMMENDATIONS; Plaintiff is granted 30 days from the date of this order to file a second amended complaint; if plaintiff does not file a second amended complaint, the court will again recommend that defendant McDonald be dismissed.(Dillon, M)

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-KJN (PC) Edwards v. High Desert State Prison et al Doc. 22 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BRIAN DARNELL EDWARDS, 11 12 Plaintiff, No. 2:10-cv-3461 WBS KJN P vs. 13 HIGH DESERT STATE PRISON, et al., 14 Defendants. 15 ORDER / 16 Plaintiff is a state prisoner proceeding without counsel, with a civil rights action 17 pursuant to 42 U.S.C. § 1983. On March 25, 2011, the undersigned issued an order addressing 18 plaintiff’s amended complaint. The undersigned found that the amended complaint stated a 19 colorable claim for relief against defendants Turner-Gambery, Cheney, Mitchell and Swingle. 20 The undersigned found that the amended complaint did not state a colorable claim for relief 21 against defendant Warden McDonald on grounds that plaintiff failed to link this defendant to the 22 alleged deprivations. 23 The March 25, 2011 order stated that plaintiff could proceed to serve defendants 24 Turner-Gambery, Cheney, Mitchell and Swingle, or he could delay serving any defendant and 25 attempt to state a cognizable claim against defendant McDonald by filing a second amended 26 complaint. The March 25, 2011 order further stated that if plaintiff returned the forms necessary 1 Dockets.Justia.com 1 for service of defendants Turner-Gambery, Cheney, Mitchell and Swingle, it would construe 2 plaintiff’s election as consent to dismissal of all claims against defendant McDonald. 3 On April 22, 2011, plaintiff filed the forms necessary for service of defendants 4 Turner-Gambery, Cheney, Mitchell and Swingle. Accordingly, on May 5, 2011, the undersigned 5 ordered the U.S. Marshal to serve these defendants and recommended dismissal of defendant 6 McDonald. 7 On June 2, 2011, plaintiff filed objections to the findings and recommendations. 8 Plaintiff alleges that he can state a colorable claim against defendant McDonald. Accordingly, 9 the May 5, 2011 findings and recommendations are vacated. Plaintiff is granted thirty days to 10 file a second amended complaint. The second amended complaint must include all claims 11 against all defendants. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The May 5, 2011 findings and recommendations (Dkt. No. 17) are vacated; 14 2. Plaintiff is granted thirty days from the date of this order to file a second 15 amended complaint; if plaintiff does not file a second amended complaint, the court will again 16 recommend that defendant McDonald be dismissed. 17 DATED: June 7, 2011 18 19 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 20 21 ed3461.vac 22 23 24 25 26 2

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