UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 12, 2010
JOHN W. WILLIAMS,
WARDEN K. HARRINGTON, ET AL.,
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING REQUEST
SECOND ORDER REQUIRING PLAINTIFF
(1) FILE AMENDED COMPLAINT, OR
(2) NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND COGNIZABLE
THIRTY DAY DEADLINE
Plaintiff John W. Williams ("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 November 22, 2010, the Court issued an order requiring Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed only with the claims found cognizable by the Court. (Doc. 13.) On December 3, 2010, Plaintiff filed a response to the Court's order, requesting leave to proceed on the cognizable claims, with the option to file an amended complaint before any defendant files an answer. (Doc. 14.)
Plaintiff's request shall be denied, and he shall be granted another opportunity to comply with the Court's order of November 22, 2010. The Court's order required Plaintiff to make a choice between two options: (1) file an amended complaint curing the deficiencies identified by the Court in its order of November 22, 2010; or (2) proceed on the original Complaint with the claims found cognizable by the Court. If Plaintiff decides to proceed only on the cognizable claims, the Court shall dismiss all remaining claims and defendants from this action for failure to state a claim and direct the United States Marshal to serve the original Complaint on defendants Billings, Harrington, and Castro only. Plaintiff is not foreclosed from requesting leave to amend the complaint at a later stage of this action.
Plaintiff has identified the Doe defendant in this action as Chief Deputy Warden M. Biter of Kern Valley State Prison. To proceed against this defendant, Plaintiff must file an amended complaint naming defendant Biter and alleging facts indicating that defendant Biter deprived Plaintiff of a protected interest. Should Plaintiff elect not to amend the complaint, defendant Biter will be dismissed from this action.
Plaintiff states that he is unable to amend the complaint at this time because he is detained in Ad-Seg and has limited access to his personal and legal property. Plaintiff is advised that he may file a motion for extension of time with the Court if he requires additional time to prepare the amended complaint.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's request of December 3, 2010 is DENIED;
2. Plaintiff is granted another opportunity to comply with the Court's order of November 22, 2010;
3. The Clerk's Office shall send Plaintiff another § 1983 civil rights complaint form;
4. 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 its order of November 22, 2010, or
b. Notify the Court in writing that he does not wish to file an amended complaint and wishes instead to proceed on his original Complaint, with the claims found cognizable by the Court; and
5. Plaintiff's failure to comply with this order shall result in the dismissal of this action.
IT IS SO ORDERED.
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