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Hightower v. Schwarzenegger

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 14, 2009

THOMAS HIGHTOWER, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET. AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR CLARIFICATION (Doc. 128)

Plaintiff, Thomas Hightower, ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was previously proceeding on Plaintiff's Second Amended Complaint, filed August 13, 2007. (Doc. 31.) However, on September 11, 2009 this Court issued an order re-screening the Second Amended Complaint in light of changed pleading standards, Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009); Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009), and dismissed the Second Amended Complaint with leave to amend. (Doc. 123.) On October 2, 2009, Plaintiff filed a request for clarification of the Order Dismissing the Second Amended Complaint with Leave to Amend (Doc. 128) wherein Plaintiff asks: (1) if "equitable tolling or other 'fair notice' tolling provisions" will preserve any claims not pursued in this action, so as to comply with Fed. R. Civ. P. 18(a), from a "Statute of Limitations bar;" and (2) whether the injunctive relief/declaratory relief he seeks makes all "Sacramento CDCR headquarters defendants and governor" indispensable parties to all groupings of his claims.

Plaintiff's motion for clarification seeks an advisory opinion which this Court may not issue. See Flast v. Cohen, 392 U.S. 83, 96 (1968). Plaintiff is directed to closely review the October 9, 2009 Amended Order Dismissing the Second Amended Complaint with Leave to Amend (Doc. 129) which addresses his inquiries in some detail. While Plaintiff is not entitled to an advisory opinion on the tolling issue, he is reminded that if he chooses to file a third amended complaint, he must not pursue unrelated claims in violation of Fed. R. Civ. P. 18(a).

Based on the foregoing, Plaintiff's Request for Clarification on Court's Order Dismissing Second Amended Complaint with Leave to Amend, filed on October 2, 2009, is HEREBY DENIED.

IT IS SO ORDERED.

20091014

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