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Calihan v. Adams

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


May 4, 2010

KENNY CALIHAN, PLAINTIFF,
v.
D. ADAMS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER RE MOTION

(Doc. 24) Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is Plaintiff's motion titled "motion to seek when the defendants will be served with the complaint."

On January 8, 2010, an order was entered granting Plaintiff's motion to amend the complaint and giving Plaintiff thirty days in which to file an amended complaint. No amended complaint has yet been filed.

Instead, on January 20, 2010, Plaintiff filed the instant motion seeking to have defendants served with the original complaint.*fn1 Plaintiff has not, however, clearly indicated an intent to withdraw his motion to file an amended complaint. The court will grant Plaintiff thirty days in which to file an amended complaint in compliance with the January 8, 2010 order. If Plaintiff does not do so, his failure to file an amended complaint will be construed as a withdrawal of the motion for leave to file an amended complaint. This action will then proceed on the original complaint. The court will screen the original complaint and direct service of process upon any defendant against whom a claim is stated.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's January 20, 2010, motion seeking service on defendants, is conditionally granted as provided above.

2. Plaintiff is granted thirty days from the date of service of this order in which to file an amended complaint in compliance with the order of January 8, 2010.

IT IS SO ORDERED.


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