The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge
On July 15, 2008, an order was entered, granting Plaintiff leave to file a first amended complaint. Plaintiff was advised that the complaint stated a claim for relief as to Defendant Lozano, but failed to state a claim as to Defendant Mason. Plaintiff was given the opportunity to proceed against Lozano on the original complaint, or file an amended complaint that cures the defects in the original complaint.
On July 28, 2008, Plaintiff filed a motion titled as a motion to quash the court's order of July 15, 2008. In his motion, Plaintiff takes exception to the order, and asserts additional allegations as to Defendant Mason.
In the July 15, 2008, order Plaintiff was advised that a pleading must be complete in and of itself, without reference to any prior pleading. In his motion, Plaintiff argues that the original complaint stated a claim as to Defendant Mason, and asserts additional facts. Plaintiff may not proceed on the original complaint against Defendant Mason. Plaintiff is free to file an amended complaint that includes the allegations against Defendants Mason and Lozano. The July 15, 2008, order identifies the defects in the complaint. The July 28, 2008, motion to quash is procedurally inappropriate, and should therefore be denied. In light of the above, Plaintiff's motion to proceed is denied as moot.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motions to quash and to proceed are denied.
2. Plaintiff is granted an extension of time of thirty days from the date of service of this order in which to file an amended complaint in compliance with the order of July 15, 2008. Should Plaintiff fail to do so, this action will proceed against Defendant Lozano on the original complaint.
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