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Oliver v. Wong

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


April 29, 2009

JAMES OLIVER,
v.
R.K. WONG, WARDEN, ET AL.,

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis who seeks relief pursuant to 42 U.S.C. § 1983. By Order filed March 2, 2009, plaintiff's claims against four of the defendants were dismissed from plaintiff's amended complaint, with leave granted to file a second amended complaint. Plaintiff has elected not to file a second amended complaint; therefore, at this time, this action will proceed as to the remaining defendant of the amended complaint. Although in the March 2, 2009, Order, it was stated that a failure to file an amended complaint would result in a recommendation of dismissal of two of the defendants, by filing dated November 3, 2008 (Doc. #3), plaintiff had consented to the jurisdiction of the undersigned. Therefore, for the reasons set forth in the March 2, 2009, Order, defendants Moore, Cooley, Huff and Lane are hereby formally dismissed by this Order.

As previously noted in the March 2, 2009, Order, the amended complaint states a cognizable claim for relief against S. Scott, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Service is appropriate for the following defendant: S. Scott.

2. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet and a copy of the amended complaint filed February 9, 2009.

3. 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 1 above; and

d. Two copies of the endorsed amended complaint filed February 9, 2009.

4. 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.

NOTICE OF SUBMISSION OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the court's order filed

1 completed summons form

1 completed USM-285 forms

2 copies of the February 9, 2009

Amended Complaint

20090429

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