(PC) Calderon v. Magdy ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE GUADALUPE CALDERON, ) Case No.: 1:19-cv-01734-DAD-SAB (PC) ) 12 Plaintiff, ) ) ORDER VACATING JANUARY 9, 2020 13 v. ) FINDINGS AND RECOMMENDATIONS, AND GRANTING PLAINTIFF ONE FINAL 14 MAGDY DANIALS, et.al., ) OPPORTUNITY TO FILE A SECOND ) AMENDED COMPLAINT 15 Defendants. ) ) [ECF Nos. 9, 12, 14] 16 ) ) 17 ) 18 Plaintiff Jose Guadalupe Calderon is appearing pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge 20 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 Plaintiff filed the instant case on December 12, 2019. On December 19, 2019, the Court 22 screened Plaintiff’s complaint, found he failed to state any cognizable claims, and granted leave to file 23 an amended complaint within thirty days. (ECF No. 6.) 24 Plaintiff filed an amended complaint on January 6, 2020. (ECF No. 7.) On January 9, 2020, 25 the Court issued Findings and Recommendations recommending that the action be dismissed for 26 failure to state a cognizable claim for relief. (ECF No. 9.) 27 On January 21, 2020, Plaintiff filed a motion for an extension of time to file objections to the 28 Findings and Recommendations, which was granted on January 23, 2020. (ECF No. 11.) 1 On January 23, 2020 and January 24, 2020, Plaintiff filed two notices regarding the allegatiot 2 || in the first amended complaint. (ECF Nos. 12, 14.) Plaintiff contends that the Court misconstrued ar 3 || omitted certain factual allegations from the analysis. (Id.) In the interest of justice and in an abundan« 4 || of caution, the Court will vacate the January 9, 2020 Findings and Recommendations and grant Plainti 5 || one final opportunity to amend by filing a second amended complaint. If Plaintiff truly believes th 6 || certain facts were misconstrued or omitted, Plaintiff should clearly and concisely set forth all of h 7 || factual allegations in a second amended complaint, and Plaintiff is advised that that an amende 8 || complaint supersedes the prior complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012 9 || Therefore, Plaintiff's second amended complaint must be “complete in itself without reference to tl 10 || prior or superseded pleading.” Local Rule 220. 11 Based on the foregoing, it is HEREBY ORDERED that: 12 1. The January 9, 2020 Findings and Recommendations (ECF No. 9) are VACATED; 13 2. Within thirty (30) days from the date of service of this order Plaintiff may file a secor 14 amended complaint; and 15 3. The failure to file a second amended complaint will result in a recommendation that th 16 action be dismissed for failure to state a cognizable claim for relief. 17 18 IT IS SO ORDERED. Al (ee 19 || Dated: _ January 28, 2020 OF 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28