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Andreas v. Cate

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


August 16, 2010

NICHOLAS DAVID ANDREAS, PLAINTIFF,
v.
MATTHEW CATE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's August 10, 2010, motion for a temporary restraining order. Doc. 54.

A review of the filing indicates that it is not simply a request for a temporary restraining order. Rather it could be a motion to amend the complaint in order to add new defendants and claims or more appropriately a new civil rights complaint. The filing raises new claims and defendants completely unrelated to those set forth in the instant case. In addition, the instant complaint was filed approximately 15 months ago and a fully briefed motion to dismiss is pending, therefore the court finds it necessary for a new and separate case to be opened.

Good cause appearing, IT IS HEREBY ORDERED that:

1. The Clerk of the Court is directed to:

a. Open a separate 42 U.S.C. § 1983 action for plaintiff and randomly assign it to a new magistrate judge.

b. File and docket a copy of this order in the new civil rights action;

c. Place copy of the complaint, filed on August 10, 2010, (Doc. 54) and a copy of this order in the additional separate file opened for this plaintiff;

d. Send plaintiff an endorsed copy of his complaint and a copy of this order both in this case and in the newly opened case;

e. Send plaintiff an application to proceed in forma pauperis.

2. If plaintiff wishes to proceed with this new action he must complete the application to proceed in forma pauperis.

3. Plaintiff's motion for a temporary restraining order (Doc. 54), in reality a motion to amend the complaint, is vacated from this docket.

20100816

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