(PC) Merino v. Gomez et al, No. 2:2021cv00572 - Document 84 (E.D. Cal. 2022)
Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 05/17/22 VACATING 79 Findings and Recommendations. Plaintiff is granted 30 days from the date of this order to file a third amended complaint; defendants are not required to respond to the third amended complaint until ordered by the court.(Licea Chavez, V)
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(PC) Merino v. Gomez et al Doc. 84 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO MERINO, 12 Plaintiff, 13 v. 14 GOMEZ, et al., 15 No. 2: 21-cv-0572 JAM KJN P ORDER Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. For the reasons stated herein, the April 14, 2022 findings and 19 recommendations recommending dismissal of defendant Warden Lynch (ECF No. 79) are 20 vacated, and plaintiff is granted thirty days to file a third amended complaint. 21 On April 14, 2022, the undersigned ordered defendants Navarro and Gomez to file a 22 response to the second amended complaint. (ECF No. 79.) On May 4, 2022, defendants Navarro 23 and Gomez filed an answer to the second amended complaint. (ECF No. 82.) 24 On April 14, 2022, the undersigned also found that plaintiff’s second amended complaint 25 failed to state a potentially colorable claim for relief against defendant Warden Lynch. (ECF No. 26 79.) In relevant part, plaintiff alleged that his cellmate attacked him on October 23, 2020. (Id. at 27 1.) Plaintiff alleged that defendant Warden Lynch knew the danger plaintiff faced from his 28 cellmate because defendant Warden Lynch read his grievance. (Id. at 2.) In the April 14, 2022 1 Dockets.Justia.com 1 findings and recommendations, the undersigned found that plaintiff did not plead sufficient facts 2 demonstrating that defendant Warden Lynch read plaintiff’s grievance. (Id. at 3.) The 3 undersigned found that it was not reasonable to infer that defendant Warden Lynch read 4 plaintiff’s grievance based only on plaintiff’s allegation that his grievance went to defendant 5 Warden Lynch’s office. (Id.) Because it did not appear that plaintiff could cure the pleading 6 defects against defendant Warden Lynch, the undersigned found that no further amendments 7 should be permitted. (Id. at 3-4.) 8 On April 26, 2022, plaintiff filed objections to the findings and recommendations. (ECF 9 No. 81.) Plaintiff alleges that he has a grievance showing that defendant Warden Lynch reviewed 10 his grievance raising his claims regarding his cellmate. (Id. at 1.) Plaintiff alleges that defendant 11 Warden Lynch denied and signed this grievance. (Id.) 12 As a result, plaintiff may be able to state a potentially colorable claim for relief against 13 defendant Warden Lynch based on the allegations in the objections. Accordingly, in an 14 abundance of caution, the April 14, 2022 findings and recommendations are vacated and plaintiff 15 is granted thirty days to file a third amended complaint. 16 The third amended complaint shall include plaintiff’s claims and allegations against 17 defendants Navarro and Gomez. The third amended complaint shall include plaintiff’s claim that 18 defendant Warden Lynch denied and signed plaintiff’s grievance raising his claims regarding his 19 cellmate. The third amended complaint shall address what plaintiff’s grievance stated regarding 20 plaintiff’s safety concerns regarding his cellmate. The third amended complaint shall also 21 address the date plaintiff submitted the grievance to defendant Warden Lynch and the date 22 defendant Warden Lynch signed this grievance. If possible, plaintiff shall attach a copy of 23 defendant Warden Lynch’s response to his grievance to the third amended complaint. 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. The April 14, 2022 findings and recommendations (ECF No. 79) are vacated; 26 2. Plaintiff is granted thirty days from the date of this order to file a third amended 27 complaint; defendants are not required to respond to the third amended complaint until 28 ordered by the court; 2 1 2 3 4 5 3. The Clerk of the Court is directed to send plaintiff the form for a civil rights complaint; 4. If plaintiff does not file a third amended complaint, the undersigned will again recommend dismissal of defendant Warden Lynch. Dated: May 17, 2022 6 7 8 9 10 Mer572.vac 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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