IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 28, 2011
RODNEY LANCE HARMON, PLAINTIFF,
DR. FOX, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the undersigned is plaintiff's motion to amend and proposed first amended complaint filed February 9, 2011. Plaintiff seeks to amend his complaint to include a claim for money damages. The original complaint sought only injunctive relief.
Plaintiff filed his first amended complaint before defendants filed a responsive pleading. Good cause appearing, plaintiff's motion to amend is granted and this action shall proceed on the amended complaint filed February 9, 2011. Fed. R. Civ. P. 15(a).
On April 7, 2011, defendants filed a motion to dismiss for failure to exhaust administrative remedies. Because the amended complaint adds only a claim for money damages, the undersigned deems the motion to dismiss as addressing the claims raised in the amended complaint. Plaintiff did not file an opposition to the motion to dismiss. However, because the motion to amend was pending, plaintiff is granted twenty-one days from the date of this order to file his opposition.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to amend (Dkt. No. 24) is granted; this action shall proceed on the amended complaint filed February 9, 2011 (Dkt. No. 25);
2. Within twenty-one days from the date of this order, plaintiff shall file an opposition to defendants' motion to dismiss; failure to file an opposition will result in a recommendation that this action be dismissed.
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