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Alexander v. Fitzgerald

August 25, 2010

ALEXIOS ALEXANDER, PLAINTIFF,
v.
SEAN FITZGERALD, ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action filed pursuant to 42 U.S.C. § 1983. On July 13, 2010, plaintiff filed a motion to amend his complaint, together with a proposed amended complaint. Therein, plaintiff explains that he has recently obtained an onboard dash camera video through discovery that exonerates a current defendant while implicating new defendants. In particular, plaintiff seeks to voluntarily dismiss defendant Fitzgerald while adding defendants Chovanec, Scholtz, Meuser, Maciel, and the Placerville Police Department to this action.

The Federal Rules of Civil Procedure provide that after a responsive pleading is served and filed, a party may amend its pleadings with the court's leave, which should be given freely when justice so requires. See Fed. R. Civ. P. 15(a)(2). Here, the court has evaluated the proposed amended complaint and concludes that it appears to state cognizable claims for relief against defendants Chovanec, Scholtz, Meuser, Maciel, and the Placerville Police Department. See 28 U.S.C. § 1915. Accordingly, the court will order that this action proceed on plaintiff's amended complaint.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's July 13, 2010 motion to amend his complaint (Doc. No. 35) is granted.

2. Defendant Fitzgerald is dismissed from this action. See Fed. R. Civ. P. 41(a).

3. Service of the amended complaint is appropriate for the following defendants: Chovanec, Scholtz, Meuser, Maciel, and the Placerville Police Department.

4. The Clerk of the Court shall send plaintiff five USM-285 forms, one summons, an instruction sheet, and a copy of the amended complaint filed July 13, 2010.

5. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit all of the following documents to the court at the same time:

a. The completed, signed Notice of Submission of Documents;

b. One completed summons;

c. One completed USM-285 form for each defendant listed in number 3 above; and

d. Six copies of the endorsed amended complaint filed July 13, 2010.

6. Plaintiff shall not attempt to effect service of the amended complaint on defendants or request a waiver of service of summons from any defendant. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants ...


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