UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 11, 2009
HOWARD YOUNG, PLAINTIFF,
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER FOR PLAINTIFF TO COMPLY WITH THE COURT'S ORDERS OF MARCH 5, 2009 AND APRIL 24, 2009 WITHIN THIRTY DAYS, OR CASE WILL BE DISMISSED WITHOUT FURTHER NOTICE
ORDER DENYING MOTION FOR IMMEDIATE SERVICE OF PROCESS AS PREMATURE ORDER FOR CLERK TO SEND PLAINTIFF A COMPLAINT FORM AND A COPY OF THE FIRST AMENDED COMPLAINT (Doc. 9.) THIRTY DAY DEADLINE
Howard Young ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 2, 2007. (Doc. 1.) On August 15, 2007, plaintiff consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1). (Doc. 6.) On January 21, 2009, this case was reassigned to the undersigned to conduct any and all proceedings in the case. (Doc. 16.) On August 31, 2007, plaintiff filed the first amended complaint. (Doc. 9.)
The Court screened the first amended complaint pursuant to 28 U.S.C. 1915A and issued an order on March 5, 2009, giving plaintiff the choice of either filing a second amended complaint, or proceeding on the claims found cognizable by the Court. (Doc. 19.) On March 18, 2009, plaintiff filed objections to the court's March 5, 2009 order, in which plaintiff attempted to clarify the claims in the first amended complaint to avoid filing a second amended complaint. (Doc. 20.) On April 24, 2009, the Court informed plaintiff that he must comply with the Court's March 5, 2009 order within thirty days, by either filing a second amended complaint, or by notifying the court 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. (Doc. 26.) On May 4, 2009, plaintiff filed objections to the Court's orders of March 5, 2009 and April 24, 2009, stating that he does not wish to waive any of his claims and requesting service of process upon all of the named defendants. (Doc. 27.) Plaintiff also informed the Court that he is unable to correct any deficiencies in the first amended complaint because he does not have a copy of the first amended complaint.
Plaintiff appears not to understand that he does not have the choice to proceed on all of the claims in his first amended complaint. At this stage of the proceedings, the Court is required by statute to dismiss the portion of the first amended complaint that fails to state a claim. 28 U.S.C. § 1915A(a). Service of process will not be initiated by the Court until the screening process is completed. In the Court's orders of March 5, 2009 and April 24, 2009, the Court gave plaintiff only two choices: (1) File a second amended complaint, or (2) Notify the Court that he wishes to proceed only on the claims in the first amended complaint found cognizable by the Court. Plaintiff may not proceed on all of the claims in the first amended complaint.
Plaintiff shall be given one final opportunity to comply with the Court's orders of March 5, 2009 and April 24, 2009. If plaintiff fails to comply, this action shall be dismissed in its entirety without further notice.
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk's Office shall send plaintiff a civil rights complaint form and a copy of plaintiff's first amended complaint filed August 31, 2007 (Doc. 9.)
2. Within thirty (30) days from the date of service of this order, in compliance with the court's orders of March 5, 2009 and April 24, 2009, plaintiff must either:
a. File a Second Amended Complaint, or
b. 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;
3. Plaintiff's motion for the Court to initiate service of process is denied as premature; and
4. If plaintiff fails to comply with this order, this action will be dismissed in its entirety, without further notice, for failure to obey a court order.
IT IS SO ORDERED.
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