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Richard Abercrombie v. Dr. Kaut

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 14, 2011

RICHARD ABERCROMBIE,
PLAINTIFF,
v.
DR. KAUT, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER FOR PLAINTIFF TO NOTIFY COURT OF HIS INTENTIONS (Doc. 8.) THIRTY DAY DEADLINE TO FILE WRITTEN NOTICE TO THE COURT

I. BACKGROUND

Richard Abercrombie ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on January 11, 2011. (Doc. 1.)

The Court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an order on November 22, 2011, requiring Plaintiff to either (1) file an amended complaint, or (2) notify the Court of his willingness to proceed with the original Complaint on the claims found cognizable by the Court. (Doc. 7.) On November 29, 2011, Plaintiff filed both an amended complaint and a notice informing the Court that he is willing to proceed on the claims found cognizable by the Court in the November 22, 2011 order. (Doc. 8.)

Plaintiff must explain his intentions in filing both an amended complaint and a notice to the Court. Thus, Plaintiff shall be required to file a written notice to the Court within thirty days, informing the Court whether:

(1) He wishes to proceed with the original Complaint filed on January 11, 2011, against only defendant Dr. Kaut, on the medical claims found cognizable by the Court in the November 22, 2011 order, OR

(2) He wishes to proceed with the Amended Complaint filed on November 29, 2011. If Plaintiff chooses to proceed with the original Complaint, the Court will begin the process to initiate service upon defendant Dr. Kaut by sending Plaintiff service documents to complete and return to the Court. Upon receipt of the service documents from Plaintiff, the Court shall direct the United States Marshal to serve a summons and copy of the original Complaint on Dr. Kaut. The Amended Complaint shall be stricken from the record, as if it had never been filed.

If Plaintiff chooses to proceed with the Amended Complaint, the Court shall schedule the Amended Complaint for screening by the Court, to determine if Plaintiff has stated any cognizable claims in the Amended Complaint. If the Court finds that Plaintiff has not stated any claims in the Amended Complaint, the Court must dismiss the Amended Complaint pursuant to 28 U.S.C. § 1915A(b)(1),(2).

II. ORDER

Accordingly, IT IS HEREBY ORDERED that:

1. Within thirty days from the date of service of this order, Plaintiff is required to send written notice to the Court whether:

(1) He wishes to proceed with the original Complaint filed on January 11, 2011, against only defendant Dr. Kaut, on the medical claims found cognizable by the Court in the November 22, 2011 order, OR (2) He wishes to proceed with the Amended Complaint filed on November 29, 2011; and

2. The failure to comply with this order may result in the dismissal of this action.

IT IS SO ORDERED.

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20111214

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