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Martinez v. Ziomek

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


March 25, 2009

STEVE MARTINEZ, PLAINTIFF,
v.
JOHN ZIOMEK, 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. Pending before the court is plaintiff's request to file an amended complaint (Doc. 24). As plaintiff is a prisoner proceeding pro se, the court was required to screen his complaint. See 28 U.S.C. § 1915A(a). When the court screened his original complaint, the court found plaintiff stated a claim against some of the defendants, at least sufficiently to pass screening, but failed to do so against others. Plaintiff was provided an opportunity to file an amended complaint, but did not do so within the time provided. The court then dismissed from this action the defendants plaintiff failed to state a claim against, and this case proceeds on his original complaint. The defendants for whom the court authorised service on have now filed a motion to dismiss. In response to the motion, plaintiff is requesting court permission to file an amended complaint.

Pursuant to Federal Rule of Civil Procedure 15(a)(1), a party may amend his pleading once as a matter of right at any time before being served with a responsive pleading. A review of the docket reflects that no amended complaint has been filed, nor has a responsive pleading has been served.*fn1 Therefore, court permission is not required for plaintiff to file an amended complaint.

However, as the defendants have filed a motion to dismiss, which is currently pending, plaintiff shall file either an amended complaint as of right, or an opposition to the current motion to dismiss, within 30 days. If plaintiff fails to file an amended complaint within the time provided, this case will proceed on the original complaint, and the pending motion to dismiss will stand submitted.

Accordingly, IT IS ORDERED that:

1. Plaintiff's request to file an amended complaint is denied as unnecessary;

2. Plaintiff shall file either an amended complaint or an opposition to the pending motion to dismiss within 30 days of the date of service of this order;

3. If plaintiff files an amended complaint within the time provided herein, the current motion to dismiss will be rendered moot; and

4. If plaintiff fails to file an amended complaint within the time provided here, this case will proceed on the original complaint and the pending motion to dismiss will stand submitted.


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