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Dwayne Swearington v. California Department of Corrections and Rehabilitation

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 28, 2012

DWAYNE SWEARINGTON,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION DEFENDANT.

The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION AND PETITION FOR JUDICIAL ASSISTANCE (ECF No. 10)

ORDER GRANTING PLAINTIFF'S FIRST MOTION FOR EXTENSION OF , TIME TO FILE FIRST AMENDED COMPLAINT (ECF No. 11)

Plaintiff Dwayne Swearington is a state prisoner proceeding pro se and in forma pauperis in this 42 U.S.C. § 1983 civil rights action originally filed in the United States District Court for the Northern District of California*fn1 (Compl., ECF No. 1) and transferred to the United States District Court for the Eastern District of California. (Order of Transfer, ECF No. 4.) On July 27, 2012, the Court screened the Complaint and dismissed it for failure to state a claim, with leave to file an amended pleading by not later than August 30, 2012. (Order Dismiss. Compl., ECF No. 9.) On August 23, 2012, Plaintiff filed a motion and petition for judicial assistance regarding instructions included in the Order Dismissing Complaint. (Mot. for Assistance, ECF No. 10.) On August 27, 2012, Plaintiff filed a first motion for extension of time to file a first amended complaint. (Mot. for Ext. of Time, ECF No. 11.) The Motion for Assistance and First Motion for Extension of Time are now before the Court.

Good cause having been presented to the Court and GOOD CAUSE APPEARING THEREFOR, IT IS HEREBY ORDERED that:

1. Plaintiff's Motion for Assistance is granted such that, pursuant to section

IV. D. of the Order Dismissing Complaint, Plaintiff should not name the California Department of Corrections and Rehabilitation as a defendant within the body of any amended pleading(s), but he should continue to use the original case name and number, "Dwayne Swearington, Plaintiff, v. California Department of Corrections and Rehabilitation, Defendant, Case No. 1:12-cv-00958-MJS (PC)" in all papers filed in this action.

2. Plaintiff's First Motion for Extension of Time to file a first amended complaint is GRANTED such that Plaintiff shall within thirty (30) days following service of this order file a first amended complaint.

3. If Plaintiff fails to file an amended complaint in compliance with this order, this action shall be dismissed, with prejudice, for failure to state a claim and failure to prosecute, subject to the "three strikes" provision set forth in 28 U.S.C. § 1915(g). Silva v. Di Vittorio 658 F.3d 1090 (9th Cir. 2011).

IT IS SO ORDERED.


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