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Dent v. Silbaugh

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 8, 2008

BRIAN KEITH DENT, PLAINTIFF,
v.
D. SILBAUGH, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. By order filed May 29, 2008, the court determined that plaintiff's original complaint stated a cognizable claim for relief against defendants D. Silbaugh and H. Murthy and directed plaintiff to return the forms necessary for service of process. Plaintiff complied with that order, and on July 30, 2008, the court ordered the United States Marshal to serve process on defendants Silbaugh and Murthy. On August 4, 2008, the United States Marshal mailed requests for waiver of service of summons to both defendants. On August 29, 2008, the United States Marshal filed waivers of service executed on behalf of both defendants. Their response to plaintiff's complaint is due on or about October 4, 2008. See Fed. R. Civ. P. 4(d)(3).

On July 30, 2008, plaintiff filed an amended complaint. On August 7, 2008, plaintiff filed a declaration in support of the amended complaint. On August 27, 2008, plaintiff filed a proposed second amended complaint. As a general matter, a party may filed an amended complaint once as of right prior to service of a responsive pleading. See Fed. R. Civ. P. 15(a)(1). Thereafter, leave of court is required to amend a complaint. See Fed. R. Civ. P. 15(a)(2).

In accordance with Fed. R. Civ. P. 15, plaintiff's July 30, 2008 first amended complaint is filed as of right. The court has screened the first amended complaint pursuant to 28 U.S.C. § 1915A and find that it states cognizable claims for relief against defendants Silbaugh and Murthy. Accordingly, the Clerk of the Court will be directed to serve a copy of the amended complaint on the Office of the Attorney General, and defendants Silbaugh and Murthy will be directed to respond to the amended complaint within the time remaining to respond to the original complaint. See Fed. R. Civ. P. 15(a)(3).

Plaintiff did not seek leave of court to file a second amended complaint. Cf. Fed. R. Civ. P. 15(a)(2). The second amended complaint will therefore be disregarded and this action will proceed on plaintiff's first amended complaint In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's July 30,2 008 first amended complaint states a cognizable claim for relief against defendants D. Silbaugh and H. Murthy;

2. The Clerk of the Court is directed to serve a copy of plaintiff's July 30, 2008 first amended complaint and the August 7, 2008 declaration in support thereof on Matthew Kubicek, Deputy Attorney General, Office of the Attorney General, P.O. Box 944255, Sacramento, California;

3. Defendants Silbaugh and Murthy shall respond to the first amended complaint within the time remaining for service of a response to plaintiff's original complaint; and

4. Plaintiff's August 27, 2008 second amended complaint shall be disregarded.

20080908

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