(PC) Shannon v. California Department of Corrections and Rehabilitation, No. 2:2017cv01084 - Document 29 (E.D. Cal. 2018)

Court Description: ORDER signed by Magistrate Judge Dennis M. Cota on 12/6/18 VACATING 12 Findings and Recommendations and DIRECTING the clerk to update the docket. Defendants Ralph Diaz, C. Tileston, Swan and Robert W. Fox added. Defendant California Department of Corrections and Rehabilitation terminated. (Coll, A)
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MYCHAEL TYRONE SHANNON, 12 13 14 No. 2:17-CV-1084-JAM-DMC-P Plaintiff, v. ORDER RALPH DIAZ, et al., 15 Defendants. 16 17 18 19 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by way of a complaint filed on May 24, 2017, naming 20 the California Department of Corrections and Rehabilitation as the only defendant. On August 21 29, 2018, the court issued findings and recommendations that this action be dismissed because the 22 only named defendant is immune under the Eleventh Amendment. On September 28, 2018, 23 plaintiff filed a motion for leave to file a first amended complaint. Plaintiff filed a second motion 24 for leave to amend on October 15, 2018, along with a motion for additional time to file objections 25 to the August 29, 2018, findings and recommendations. On October 30, 2018, the court denied 26 plaintiff’s motions for leave to amend as unnecessary. Because plaintiff had not filed a first 27 amended complaint with his motions for leave to amend, however, the court indicated the action 28 continues to proceed on the original complaint and findings and recommendations thereon. On 1 1 November 30, 2018, plaintiff filed objections to the August 29, 2018, findings and 2 recommendations along with a first amended complaint. 3 Given the filing of the first amended complaint as of right, the original complaint 4 is superseded and, consequently, the August 29, 2018, findings and recommendations are 5 rendered moot and will be vacated. The Clerk of the Court will be directed to update the docket 6 to reflect the defendants named in the first amended complaint. The court will address the 7 substance of plaintiff’s first amended complaint by separate order. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The August 29, 2018, findings and recommendations are vacated; 10 2. The Clerk of the Court is directed to update the docket to reflect the 11 12 13 following are named defendants: Ralph Diaz, Sgt. Swan, C. Tileston, and Robert W. Fox; and 3. The Clerk of the Court is directed to terminate the California Department of Corrections and Rehabilitation as a named defendant. 14 15 16 Dated: December 6, 2018 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2