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Carpenter v. Sullivan

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


February 11, 2009

WILLIE LEE CARPENTER, PLAINTIFF,
v.
W. J. SULLIVAN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on January 22, 2007. On September 17, 2008, Plaintiff filed a first amended complaint. On November 19, 2008, an order issued, finding that the original complaint stated a claim as to certain defendants and requiring Plaintiff to complete USM 285 forms for service of process. Plaintiff returned the forms and the court ordered service of the original complaint.

On January 6, 2009, Plaintiff filed a motion titled as a motion for leave to amend the amended complaint. Plaintiff indicates that his original complaint did not include certain defendants. Plaintiff seeks leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a).

Pursuant to Rule 15(a), Plaintiff may file amend his complaint as a matter of course, so long as a response has not been filed. This action should therefore proceed on the September 17, 2008, first amended complaint. The order directing service of process was therefore in error. The court should have directed service of the September 17, 2008, first amended complaint. On February 10, 2009, Defendants Pfeil, Carrasco, Barajas, Ortiz and Gonzales filed an answer to the original complaint filed January 22, 2007.

The court notes that in his January 6, 2009, motion, Plaintiff seeks leave to amend the original complaint. Plaintiff is advised that this action proceeds on the September 17, 2008, first amended complaint. Should Plaintiff seek leave to file a second amended complaint, Plaintiff should inform the court. Should Plaintiff desire to proceed on the September 17, 2008, first amended complaint, the court will screen the first amended complaint, and direct service of process on those defendants that Plaintiff states a claim against. If the first amended complaint states a claim against any of the defendants who have participated in the February 10, 2009, answer, the court will direct those defendants to file a response to the first amended complaint. Plaintiff is also advised that once an answer has been filed as to the operative pleading, a scheduling order will be entered, setting a deadline for the filing of amended pleadings.

Accordingly, IT IS HEREBY ORDERED that Plaintiff shall inform the court, within thirty days of the date of service of this order, whether he intends to proceed on the September 17, 2008, first amended complaint or seek leave to file a second amended complaint.

IT IS SO ORDERED.

20090211

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