(PC) Barrett v. Ciolli ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY BARRETT, Case No. 1:20-cv-01802-NONE-EPG (PC) 12 Plaintiff, 13 v. ORDER VACATING FINDINGS AND RECOMMENDATIONS 14 A. CIOLLI, et al., (ECF No. 10) 15 Defendants. 16 17 Plaintiff Anthony Barrett (“Plaintiff”) is a federal inmate proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 19 403 U.S. 388 (1971). 20 Plaintiff filed the complaint commencing this action on December 22, 2020. (ECF No. 1.) 21 On April 5, 2021, the Court screened Plaintiff’s complaint and found that it failed to state any 22 cognizable claims. (ECF No. 8.) The Court gave Plaintiff thirty days to either “a. File a First 23 Amended Complaint; or b. Notify the Court in writing that he wants to stand on his complaint.” 24 (Id. at 16.) On February 19, 2021, Plaintiff filed his First Amended Complaint. (ECF No. 9.) 25 On May 4, 2021, the Court entered findings and recommendations recommending that this 26 action proceed on Plaintiff’s Fifth Amendment claims for deprivation of property and deprivation 27 of liberty without due process against Does 1 through 10 and on Plaintiff’s Eighth Amendment 28 claims for unconstitutional conditions of confinement and deliberate indifference to serious 1 | medical needs against Does 1 through 10. (ECF No. 10.) The Court further recommended that all 2 | other claims and defendants be dismissed for failure to state a claim upon which relief may be 3 | granted. (Id.) Plaintiff was provided an opportunity to file objections to the findings and 4 | recommendations. (Id.) 5 On May 21, 2021, Plaintiff filed his objections to the Court’s findings and 6 || recommendations. (ECF No. 12.) Plaintiff's objections contained new factual allegations that 7 | were not included in the original complaint or the First Amended Complaint. (See ECF Nos. 1, 9.) 8 || However, the Court could not consider factual allegations in Plaintiff's objections in deciding 9 | whether Plaintiff stated any legal claims. The Court therefore entered an order on May 24, 2021, 10 | granting Plaintiff leave to file an amended complaint. (ECF No. 13.) The Court’s order explained 11 | that it was not vacating the findings and recommendations entered on May 4, 2021 at that time 12 | but may do so if Plaintiff filed an amended complaint. (/d.) 13 On June 9, 2021, Plaintiff filed a Second Amended Complaint. (ECF No. 16.) In light of 14 || the Second Amended Complaint, the Court will vacate the findings and recommendations entered 15 | on May 4, 2021, and will screen Plaintiff's Second Amended Complaint in due course. 16 Accordingly, IT IS HEREBY ORDERED that the findings and recommendations entered 17 | on May 4, 2021 (ECF No. 10) are VACATED. 18 19 IT IS SO ORDERED. 20 | Dated: _ Jume 14, 2021 [spe heey — 1 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28