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Allen v. Rivera

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 22, 2010

CEDRIC R. ALLEN, PLAINTIFF,
v.
J. RIVERA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER TO PROVIDE FURTHER RESPONSE TO COURT ORDER

(Doc. 20)

Plaintiff Cedric R. Allen ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 18, 2010, the Court screened Plaintiff's first amended complaint pursuant to 28 U.S.C. § 1915A. (Doc. #20.) The Court found that Plaintiff's first amended complaint stated some cognizable claims and some non-cognizable claims. Plaintiff was ordered to notify the Court of whether he wished to (1) proceed only on the claims found to be cognizable by the Court, or (2) file a second amended complaint which cures the deficiencies in his non-cognizable claims. Plaintiff has failed to obey the Court's March 18, 2010 order.

The Court notes that on April 23, 2010, Plaintiff filed a motion requesting appointment of counsel, in part because "Plaintiff does not know what papers should now be filed or submitted to the court. . . ." (Ex Parte Mot. for Assignment of Counsel, and Supporting Mem. of P. & A. and Decl. ¶ 7.) Plaintiff's motion for appointment of counsel was denied on April 27, 2010. (Doc. #23.)

Plaintiff is again ordered to notify the Court of whether he wishes to proceed only on the claims found to be cognizable by the Court or whether Plaintiff wishes to file a second amended complaint. Although Plaintiff has indicated that he is unfamiliar with the Court's filing requirements, Plaintiff is advised that this order is relatively simple and does not require the assistance of a lawyer. Within thirty (30) days of the date of service of this order, Plaintiff must file a notice indicating whether Plaintiff is willing to proceed only on the claims found to be cognizable, or whether he intends to file a second amended complaint. Plaintiff is warned that the failure to obey this order may result in the dismissal of this action.

Accordingly, it is HEREBY ORDERED that:

1. Within thirty (30) days from the date of service of this order, Plaintiff must either:

a. File an amended complaint curing the deficiencies identified by the Court in the March 18, 2010 screening order, or

b. Notify the Court in writing that he does not wish to file a second amended complaint and wishes to proceed only against Defendants Rivera, Quillen, Beer, Munoz, McVay, Beattles, and Felin for the violation of Plaintiff's rights under the Eighth Amendment; and

2. If Plaintiff fails to comply with this order, this action may be dismissed for failure to obey a court order.

IT IS SO ORDERED.

20100522

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