-GBC (PC) Gunn v. Tilton et al, No. 1:2008cv01038 - Document 78 (E.D. Cal. 2011)

Court Description: ORDER Adopting Findings and Recommendations 66 ; ORDER Denying Motion for Extension of Time to File Amended Complaint 50 ; ORDER Granting Motion to Strike Amended Complaint 54 ; ORDER Striking Amended Complaint filed on November 29, 2010 52 ; ORDER Directing Defendants to File an Amended Motion for Summary Judgment or File Intent Not to Amend, signed by District Judge Lawrence J. O'Neill on 12/22/11. (Verduzco, M)
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-GBC (PC) Gunn v. Tilton et al Doc. 78 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 KEVIN GUNN, 10 11 12 13 14 15 16 17 18 19 20 CASE NO. 1:08-cv-01038-LJO-GBC (PC) Plaintiff, v. JAMES TILTON, et al., Defendants. ORDER ADOPTING RECOMMENDATIONS Doc. 66 FINDINGS AND ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE AMENDED COMPLAINT Doc. 50 ORDER GRANTING MOTION TO STRIKE AMENDED COMPLAINT Doc. 54 ORDER STRIKING AMENDED COMPLAINT FILED ON NOVEMBER 29, 2010 Doc. 52 ORDER DIRECTING DEFENDANTS TO FILE AN AMENDED MOTION FOR SUMMARY JUDGMENT OR FILE INTENT NOT TO AMEND / (THIRTY-DAY DEADLINE) 21 Plaintiff Kevin Gunn (“Plaintiff”) is a state prisoner proceeding in forma pauperis (“IFP”) 22 in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 23 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On July 20, 2011, the 24 Magistrate Judge filed a Findings and Recommendations herein which was served on the Plaintiff 25 and which contained notice to the Plaintiff that any objections to the Findings and Recommendations 26 were to be filed within thirty days. Doc. 66. After being granted extensions of time, Plaintiff filed 27 an objection to the Findings and Recommendations on December 21, 2011. 28 1 Dockets.Justia.com 1 In his objection, Plaintiff asserts that since the original order was ambiguous and that he has 2 met the heightened pleading standard, his second amended complaint should not be stricken from 3 the record. Doc. 77. Given the fact that: 1) discovery had closed and Defendants had filed a motion 4 for summary judgment before Plaintiff ever filed a motion to amend; 2) the order permitting the 5 initial amendment was limited to clarification and not contemplate attaching additional exhibits; and 6 3) Plaintiff’s amendment would unfairly prejudice Defendants, the Court finds that striking the 7 second amended complaint is warranted. 8 9 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 10 de novo review of this case. Having carefully reviewed the entire file and Plaintiff’s objections, the 11 Court finds the Findings and Recommendations to be supported by the record and by proper analysis. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The Findings and Recommendations, filed July 20, 2011, is adopted in full; 14 2. Defendants’ motion to strike is granted to the extent that it is consistent with 15 the findings and recommendations (Doc. 54); 16 3. 17 Plaintiff’s additional Second Amended Complaint, filed on October 25, 2010 is hereby stricken from the record (Doc. 52); 18 4. 19 Plaintiff’s motion for extension of time to file the second amended complaint is denied as moot (Doc. 50); and 20 5. 21 Defendants are given thirty (30) days to amend/supplement their motion for summary judgment or to file a notice of intent not to supplement. 22 23 24 IT IS SO ORDERED. Dated: b9ed48 December 22, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 25 26 27 28 2