IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 15, 2009
RICKY LAMONT BROWN, PLAINTIFF,
D.K. SISTO, ET AL., DEFENDANT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
On December 10, 2008, the court found that the October 16, 2008, first amended complaint stated a colorable claim for relief. The court ordered defendants Sisto, Traquina, Rallos and Hicks to file a response within twenty days. The court ordered plaintiff to complete and return the forms necessary to effect service of defendant Morales within thirty days.
On December 29, 2008, plaintiff filed a motion for leave to file a second amended complaint and a proposed second amended complaint. Plaintiff states that he forgot to include several exhibits with the first amended complaint. The court has reviewed the first amended and proposed second amended complaint and finds them to be substantively identical. Good cause appearing, the motion to amend is granted.
On December 30, 2008, defendants Sisto, Traquina, Rallos and Hicks filed an answer to the first amended complaint. For the reasons discussed above, the court will deem defendants' answer as addressing the second amended complaint. The court will now order service of the second amended complaint on defendant Morales.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's December 29, 2008, motion to amend (no. 28) is granted; this action shall now proceed on the second amended complaint attached to the December 29, 2008, motion to amend;
2. The answer filed December 30, 2008, by defendants Sisto, Traquina, Fallos and Hicks is deemed to address the second amended complaint;
3. The December 10, 2008, order directing service of the first amended complaint on defendant Morales is vacated;
4. Service is appropriate for the following defendants: Morales.
5. The Clerk of the Court shall send plaintiff 1 USM-285 forms, one summons, an instruction sheet and a copy of the second amended complaint filed December 29, 2008;
6. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for each defendant listed in number 3 above; and
d. Two copies of the endorsed second amended complaint filed December 29, 2008.
7. Plaintiff need not attempt service on defendants and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
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