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Plata v. Woodford

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 6, 2009

MARCIAL PLATA, PLAINTIFF,
v.
WOODFORD, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO NOTIFY COURT WHETHER HE WISHES TO PROCEED WITH THE FIRST AMENDED COMPLAINT OR THE SECOND AMENDED COMPLAINT THIRTY DAY DEADLINE TO FILE RESPONSE

Plaintiff Marcial Plata ("plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 7, 2006. (Doc. 1.) On September 10, 2008, the court dismissed the complaint for plaintiff's failure to state a claim, with leave to amend. (Doc. 12.) On December 10, 2008, plaintiff filed a First Amended Complaint. (Doc. 19.) The court screened the First Amended Complaint pursuant to 28 U.S.C. § 1915A and found that plaintiff states a cognizable claim against defendants C/O Watson, E. Corona, and Doe #6, for retaliation. (Doc. 21.)

On March 5, 2009, plaintiff was ordered to either (1) file a Second Amended Complaint curing the deficiencies identified by the court, or in the alternative, (2) notify the court in writing that he does not wish to file a Second Amended Complaint and wishes to proceed only on the claims identified by the court as viable/cognizable in the court's order. Id. On April 24, 2009, plaintiff filed a notice that he is willing to proceed only on the claims found cognizable by the court. (Doc. 25.) However, also on April 24, 2009, plaintiff filed a Second Amended Complaint. (Doc. 26.) Because plaintiff filed both a Second Amended Complaint and a notice he is willing to proceed on the cognizable claims in the First Amended Complaint, it is not clear to the court whether plaintiff wishes to proceed with the First Amended Complaint or the Second Amended Complaint. Plaintiff must make a choice whether he wishes to (1) proceed with the First Amended Complaint, against only defendants Watson, Corona, and Doe #6, for retaliation, or in the alternative, (2) proceed with the Second Amended Complaint. If plaintiff chooses to proceed with the First Amended Complaint, the court will send plaintiff service documents to complete and return to the court, and the United States Marshal will be directed to serve a summons and a copy of the First Amended Complaint on defendants Watson, Corona, and Doe #6. If plaintiff chooses to proceed with the Second Amended Complaint, the court will screen the Second Amended Complaint and determine whether it states any cognizable claims against any of the defendants named in the Second Amended Complaint.

Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:

1. Within thirty days of the date of service of this order, plaintiff must notify the court if he wishes to EITHER:

(1) Proceed with the First Amended Complaint, filed December 10, 2008, against only defendants Watson, Corona, and Doe #6, for retaliation; OR

(2) Proceed with the Second Amended Complaint, filed April 24, 2009.

2. Plaintiff's failure to comply with this order shall result in a recommendation that this action be dismissed.

IT IS SO ORDERED.

20090506

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