Robert Beard, an inmate confined at Kern Valley State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. On January 4, 2011, the court ordered plaintiff to provide the name of defendant John Doe within 30 days so that the complaint could be served. Plaintiff did not do so, and on March 31, 2011, the court recommended that the action be dismissed without prejudice.
On April 11, 2011, plaintiff filed objections. Plaintiff's objections state that the name of the defendant was contained in his motion for appointment of counsel, and identifies the defendant as Behi. As plaintiff has now provided a named defendant, Behi, the action may proceed.
Although plaintiff filed a document titled "Complaint" on January 23, 2011, this document consists only of one sheet discussing jurisdiction, venue and intradistrict transfer, with copies of exhibits and two sheets titled "statement of facts" that states that plaintiff is proceeding pro se and is "not in possession of [his] legal materials and resources." The document does not appear to be intended to be an amended complaint. Therefore, the action proceeds on the original complaint.
Accordingly, it is hereby ORDERED that:
1. The court's March 21, 2011 findings and recommendations are vacated.
2. Service is appropriate for defendant Behi.
3. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet and one copy of the November 5, 2009 complaint.
4. Within 30 days from service of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit it to the court with the completed summons and USM-285 form and two copies of the endorsed November 5, 2009 complaint.
5. Upon receipt of the necessary materials, the court will direct the United States Marshal to serve defendant Behi pursuant to Federal Rule of Civil Procedure 4 without payment of costs. Failure to comply with this order will result in a recommendation that this action be dismissed.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
ROBERT BEARD, Plaintiff, v. BEHI, Defendant.
No. CIV S-09-3210 WBS EFB P
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the ...