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Mack v. Ona

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


May 18, 2009

ANTHONY E. MACK, PLAINTIFF,
v.
MARSHA ONA, 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 motion for clarification on unserved defendant Elaine Hill and request for service (Doc. 119).

Plaintiff indicates that he named Elaine Hill as a defendant in his amended complaint, but service was never authorized. A review of Plaintiff's amended complaint does show that, although she is not included in Plaintiff's list of named defendants, he did include Elaine Hill in his caption and included her in his allegations. Specifically, Plaintiff alleges Ms. Hill, as a member of the Medical Authorization Review Committee, opposed his surgery and delayed authorizing the surgery, in deliberate indifference to his serious medical needs. (See Amended Complaint (Doc. 24) at 16-18).

Plaintiff's amended complaint appears to state a cognizable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) against Elaine Hill. Accordingly, service appears to be appropriate and the court will direct service by the U.S. Marshal without pre-payment of costs. Plaintiff is informed, however, that this action cannot proceed further against Elaine Hill until he complies with this order, including returning the appropriate service documents to the court as set forth below. Plaintiff is warned that failure to comply with this order may result in dismissal of the action. See Local Rule 11-110.

A review of the docket also shows a pending motion for leave to file an amended complaint (Doc. 58). The motion was filed on April 4, 2008. At that time, Defendants' motion to dismiss was pending, and no answer had been filed. The court notes that Plaintiff had already filed an amended compliant, but that was done pursuant to this court's order following dismissal of his original complaint. Accordingly, at the time Plaintiff filed his motion, no leave of court was required for Plaintiff to file an amended complaint as of right pursuant to Federal Rule of Civil Procedure 15(a)(1). In fact, Plaintiff indicates in his motion that he should be allowed to amend as of right because no responsive pleading was filed. Plaintiff was correct. At the time he filed his motion, no leave of court was required to file an amended complaint and Plaintiff could have, and should have, filed his amended pleading without requesting leave to do so. However, at this time a responsive pleading has been filed. Therefore, due to Plaintiff's delay in filing an amended complaint as of right, the time to do so has past. Plaintiff's motion will be denied as unnecessary, because at the time the motion was filed, leave of court was not required. This action will proceed on Plaintiff's first amended complaint (Doc. 24).

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff motion for clarification (Doc. 119) is granted;

2. Service defendant Elaine Hill is authorized;

3. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet, and a copy of the amended complaint (Doc. 24);

4. Within 30 days of the date of service 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(s); and

d. Two copies of the endorsed amended complaint; and

5. Plaintiff's motion for leave to amend the complaint (Doc. 58) is denied as unnecessary.

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

ANTHONY E. MACK, Plaintiff, v. MARSHA ONA, et al., Defendants.

No. CIV S-05-2134-MCE-CMK-P

NOTICE OF SUBMISSION OF DOCUMENTS

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

1 completed summons form;

completed USM-285 form(s); and

copies of the amended complaint.

DATED: __________________

Plaintiff

20090518

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