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Borden v. Yates

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 27, 2009

STEVEN BORDEN, PLAINTIFF,
v.
JAMES YATES, WARDEN, DEFENDANT.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER RETURNING LODGED COPY OF AMENDED COMPLAINT TO PLAINTIFF (Doc. 23.)

I. BACKGROUND

Steven Borden ("plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action was initiated by civil complaint filed by plaintiff in the Fresno County Superior Court on November 5, 2007 (Case #07CECL10425). On January 10, 2008, defendant Yates ("defendant") removed the case to federal court by filing a Notice of Removal of Action pursuant to 28 U.S.C. § 1441(b). (Doc. 1.) On February 2, 2009, plaintiff filed the First Amended Complaint, upon which this action now proceeds. (Docs. 21, 22.) On March 16, 2009, plaintiff submitted a copy of the amended complaint, with indication that plaintiff has served a copy of the amended complaint on defendants. (Doc. 23.)

In this instance, the court does not require proof of service of the amended complaint by plaintiff. Defendant was served with a copy of the First Amended Complaint electronically by the court on March 4, 2009, the date the First Amended Complaint was entered on the court's docket. Local Rule 5-135(b). Therefore, the court does not require the copy of the amended complaint submitted by plaintiff and lodged by the court on March 16, 2009. In order to avoid confusion of the record as to which amended complaint is operative, the court shall return the lodged copy of the amended complaint to plaintiff. (Doc. 23.) At the present time, the First Amended Complaint and plaintiff's separate Memorandum of Points and Authorities, filed on February 5, 2009, comprise the operative amended complaint in this action. (Docs. 21, 22.)

IV. CONCLUSION

Based on the foregoing, IT IS HEREBY ORDERED that:

1. The Clerk shall return to plaintiff the copy of the amended complaint lodged on March 16, 2009;

2. At the present time, the operative complaint in this action consists of the First Amended Complaint and plaintiff's separate Memorandum of Points and Authorities, filed on February 5, 2009 and reflected as Documents 21 and 22 on the court's docket; and

3. The court shall screen plaintiff's First Amended Complaint in due time.

IT IS SO ORDERED.

20090427

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