(PC) Ibuado v. Federal Prison Atwater ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GERALD IBUADO, Case No. 1:22-cv-00651-AWI-BAM (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR CONTINUANCE, CONSTRUED AS A 13 v. MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT 14 FEDERAL PRISON ATWATER, et al., (ECF No. 17) 15 Defendants. ORDER VACATING FINDINGS AND RECOMMENDATIONS 16 (ECF No. 14) 17 ORDER GRANTING PLAINTIFF LEAVE TO FILE A SECOND AMENDED COMPLAINT 18 THIRTY (30) DAY DEADLINE 19 20 Plaintiff Gerald Ibuado (“Plaintiff”) is a former federal prisoner proceeding pro se and in 21 forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of 22 Federal Bureau of Narcotics, 403 U.S. 388 (1971). 23 On November 8, 2022, the Court screened Plaintiff’s first amended complaint and issued 24 findings and recommendations that this action be dismissed for failure to state a cognizable claim 25 upon which relief may be granted. (ECF No. 14.) Plaintiff was directed to file any objections to 26 the findings and recommendations within fourteen (14) days. Following an extension of time, 27 Plaintiff’s objections were due on or before January 3, 2023. (ECF No. 16.) 28 /// 1 On January 10, 2023, Plaintiff filed a “Motion for Continuence.” (ECF No. 17.) In his 2 motion, Plaintiff requests that the Court allow his case to proceed, and provides additional factual 3 information linking some of the named defendants to the allegations in the first amended 4 complaint. (Id.) 5 Although Plaintiff has not specifically requested further leave to amend, and the filing is 6 untimely if intended to be Plaintiff’s objections, in light of Plaintiff’s pro se status and the new 7 factual allegations the Court finds it appropriate to vacate the pending findings and 8 recommendations. Plaintiff’s motion for continuance is construed as a motion for leave to file an 9 amended complaint, and Plaintiff is granted leave to file a second amended complaint that 10 incorporates the factual allegations included in the motion for continuance. The Court will screen 11 the second amended complaint in due course to determine whether it states a cognizable claim for 12 relief. 13 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 14 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 15 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise 16 a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). 17 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 18 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 19 “buckshot” complaints). 20 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 21 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 22 complaint must be “complete in itself without reference to the prior or superseded pleading.” 23 Local Rule 220. 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. Plaintiff’s motion for continuance, (ECF No. 17), is construed as a motion for leave to file 26 an amended complaint; 27 2. Plaintiff’s motion for leave to file an amended complaint, (ECF No. 17), is GRANTED; 28 /// 1 3. The findings and recommendations issued on November 8, 2022, (ECF No. 14), are 2 VACATED; 3 4. The Clerk’s Office shall send Plaintiff a complaint form; 4 5. Within thirty (30) days from the date of service of this order, Plaintiff shall file a second 5 amended complaint; and 6 6. If Plaintiff fails to file a second amended complaint in compliance with this order, 7 this action will be dismissed, with prejudice, for failure to obey a court order and 8 failure to state a claim. 9 IT IS SO ORDERED. 10 11 Dated: January 10, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28