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Roberts v. Cate

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


December 8, 2009

TONY ROBERTS, PLAINTIFF,
v.
MATTHEW CATE, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. By order filed January 22, 2009, this court found that plaintiff's amended complaint, filed November 21, 2008, stated a cognizable claim for relief against defendants Matthew Cate, Mike Knowles and John Marshall and ordered plaintiff to return forms necessary for service of process on said defendants. Plaintiff timely returned the forms, and on February 27, 2009, this court ordered the United States Marshal to serve process on said defendants. On May 21, 2009, defendants Cate, Knowles and Marshall filed a motion to dismiss the action, which plaintiff has opposed.

Review of the record shows that on January 20, 2009, plaintiff filed a second amended complaint. While plaintiff is only entitled to amend his complaint once as of right, see Fed. R. Civ. P. 15, review of the second amended complaint shows that it is appropriate to grant plaintiff leave to amend to proceed on that complaint.

Accordingly, good cause appearing, IT IS HEREBY ORDERED that:

1. Plaintiff is granted leave to proceed on the second amended complaint, filed January 20, 2009;

2. Defendants' May 21, 2009 motion to dismiss is denied without prejudice; and

3. Within twenty days from the date of this order defendants shall file and serve a response to plaintiff's January 20, 2009 second amended complaint.

20091208

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