(PC) Joseph v. Hawkins, et al, No. 2:2015cv00332 - Document 13 (E.D. Cal. 2016)
Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 4/21/2016 ORDERING, within 30 days, plaintiff shall complete and return the Notice of Amendement with the required documents; the Clerk shall send plaintiff the form for filing a civil rights action. The findings and recommendations are held in abeyance pending screening of the new pleading. (Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALONZO JOSEPH, 12 13 14 15 No. 2:15-cv-0332 JAM KJN P Plaintiff, v. ORDER R. HAWKINS, et al., Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On March 18, 2016, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within fourteen days. Plaintiff has filed 23 objections to the findings and recommendations. 24 Plaintiff objects to the dismissal of his claims against defendant Dr. Hawkins. Plaintiff 25 contends that his medical condition progressed from worse to severe, and despite being aware of 26 such progression, Dr. Hawkins failed to respond. Once plaintiff was examined by a new doctor, 27 Dr. Petterson ordered medical tests and referred plaintiff to the Pain Management Clinic (“PMC”) 28 such that plaintiff finally received some pain relief. Plaintiff contends that Dr. Hawkins should 1 1 have ordered these medical tests earlier, and that his failure to do so subjected plaintiff to 2 unnecessary pain and suffering. Plaintiff now states that he “always told Dr. Hawkins that 3 [plaintiff] was in severe pain, and couldn’t function [in] his daily activities,” but that Dr. Hawkins 4 would disregard plaintiff’s pleas. (ECF No. 12 at 3.) While not entirely clear, it appears that 5 plaintiff contends that Dr. Hawkins was deliberately indifferent from 2011 until 2014 when 6 plaintiff was finally seen by the PMC. In addition, plaintiff clarifies that he was never prescribed 7 Tramadol while housed at Mule Creek State Prison. (ECF No. 12 at 3.) 8 In light of these objections, new allegations and clarification, plaintiff is granted leave to 9 amend his pleading to allege all of his Eighth Amendment claims against Dr. Hawkins. Plaintiff 10 is not granted leave to amend as to defendants Smith and Smiley, and is provided the opportunity 11 to consent to their dismissal. Plaintiff is not allowed to add new defendants. The findings and 12 recommendations will be held in abeyance pending screening of the new pleading. Plaintiff’s 13 prior exhibits remain a part of the court record and may be referred to by any party. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Within thirty days from the date of this order, plaintiff shall complete the attached 16 Notice of Amendment and submit the following documents to the court: 17 a. The completed Notice of Amendment; and 18 b. An original and one copy of the Amended Complaint. 19 Plaintiff’s third amended complaint shall comply with the requirements of the Civil Rights Act, 20 the Federal Rules of Civil Procedure, the Local Rules of Practice, and this court’s prior orders. 21 The third amended complaint must also bear the docket number assigned to this case and must be 22 labeled “Third Amended Complaint.” 23 24 25 Failure to file a third amended complaint in accordance with this order may result in the dismissal of this action. 2. The Clerk of the Court is directed to send plaintiff the form for filing a civil rights 26 action by a prisoner. 27 Dated: April 21, 2016 28 jose0332.amd3 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALONZO JOSEPH, 12 13 14 No. 2:15-cv-0332 JAM KJN P Plaintiff, v. NOTICE OF AMENDMENT R. HAWKINS, et al., 15 Defendants. 16 17 18 Plaintiff hereby submits the following document in compliance with the court's order filed______________. 19 _____________ Third Amended Complaint 20 _____________ Plaintiff consents to the dismissal of defendants Smith and Smiley. 21 22 23 24 DATED: ________________________________ Plaintiff 25 26 27 28 3
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