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Bjorkstrand v. Dubose

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


December 24, 2008

AARON T. BJORKSTRAND, PLAINTIFF,
v.
DANIEL T. DUBOSE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On October 29, 2008, the court directed plaintiff to file a first amended complaint within 30 days. As of December 2, 2008, no first amended complaint had been docketed and the court directed plaintiff to show cause why this action should be dismissed for lack of prosecution and failure to comply with court rules and orders (see Doc. 25). After the order to show cause was signed but before it was docketed and served, plaintiff's first amended complaint was docketed (see Doc. 26). Plaintiff filed an identical amended complaint on December 17, 2008 (see Doc. 29). The order to show cause will, therefore, be discharged.

Pending before the court is plaintiff's "Motion for Reconsideration" (Doc. 28) of the court's October 29, 2008, order in which the court stated at footnote 1 the following:

Plaintiff also names "John Doe" transport officers and hospital staff. Until the complaint is amended to substitute true names for these doe defendants, they are not proper defendants. The Clerk of the Court will be directed to update the docket to terminate "Transport Officers," "O.R. Staff," and "Hospital Staff" as separately named defendants.

In the current motion, plaintiff asks the court to allow him to call these unspecified individuals as witnesses. Plaintiff's motion will be denied. It appears that plaintiff misunderstands the court's language which merely directed the Clerk of the Court to terminate these individuals as named defendants until such time as plaintiff ascertains their identities and amends the complaint to name them. The court's order does not preclude these individuals as defendants once their identities are known. As to whether they can be called as witnesses at a later stage in the proceedings, again that will require plaintiff to identify them by name so they can be called.

Accordingly, IT IS HEREBY ORDERED that:

1. The order to show cause (Doc. 25) is discharged; and

2. Plaintiff's "Motion for Reconsideration" (Doc. 28) is denied.

20081224

© 1992-2008 VersusLaw Inc.



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