IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 29, 2009
LUIS LORENZO ARMENTERO, PLAINTIFF,
D.K. SISTO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By Order filed March 5, 2009, plaintiff's claims against two of the defendants named in the original complaint were dismissed with leave to file an amended complaint. Plaintiff has elected not to file an amended complaint; therefore, at this time, this action will proceed as to the remaining defendant of the original complaint. Although in the March 5, 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 December 8, 2008 (docket # 5), plaintiff had consented to the jurisdiction of the undersigned. Therefore, for the reasons set forth in the March 5, 2009, Order, defendants Sisto and Cappel are hereby formally dismissed by this Order.
As previously noted in the March 5, 2009, Order, the complaint states a colorable claim for relief against defendant S. Willis, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the 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. Defendants Sisto and Cappel are dismissed from this action.
2. Service is appropriate for the following defendant: S. Willis.
3. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet and a copy of the complaint filed November 20, 2008.
4. 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 2 above; and
d. Two (2) copies of the endorsed complaint filed November 20, 2008.
5. 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 form
2 copies of the November 20, 2008
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