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Sy Lee Castle v. C. Chen
May 10, 2013
SY LEE CASTLE,
C. CHEN, DEFENDANT.
The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO PROCEED ON UNSCREENED FIRST AMENDED COMPLAINT (ECF No. 13)
On March 5, 2012, Plaintiff Sy Lee Castle, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.)
The Court screened the Complaint on February 28, 2013 and determined that Plaintiff stated cognizable inadequate medical care and retaliation claims against Defendant Chen. (ECF No. 8.) The Court ordered Plaintiff to complete and return service documents within thirty days. (Id.) Plaintiff filed a First Amended Complaint on March 1, 2013. (ECF No. 9.) On March 5, 2013, the Court issued an order directing Plaintiff to choose an operative pleading and notify the Court of his selection by not later than March 25, 2013. (ECF No. 10.) Plaintiff was advised that upon failure to comply, the Court would order service of the Complaint and disregard the First Amended Complaint. (Id.) Plaintiff submitted service documents for the Complaint on March 11, 2013. (ECF No. 11.) Plaintiff failed to respond to the Court's March 5, 2013 Order by the March 25th deadline. The Court, on April 19, 2013, ordered the First Amended Complaint be disregarded and directed Marshal's service of the Complaint upon Defendant Chen. (ECF No. 12.)
Pending before the Court is Plaintiff's Motion to Proceed on the unscreened First Amended Complaint filed April 22, 2013. (ECF No. 13.) Plaintiff refers to drowsiness and memory lapses caused by a severe spinal injury, constant pain, and multiple medications apparently as grounds for failing to have earlier elected an operative pleading.
Plaintiff's Motion to Proceed on the unscreened First Amended Complaint shall be denied for lack of good cause. Plaintiff's submission of service documents for the original Complaint was and is taken as his election to proceed on that pleading. Plaintiff provides no other explanation for submission of the service documents or why he failed to timely respond to the Court's March 5th Order. His medical problems may be troublesome, but their mere presence does not excuse or explain his failure to comply with the Court's Order. He has not explicitly attributed his failure to respond timely to any impairment. Plaintiff also fails to identify any allegations in the First Amended Complaint that were not and could not have been asserted earlier. Though the Court has not formally screened the First Amended Complaint, preliminary review of it suggests it is designed simply to add as Defendants individuals who are not alleged to have had direct responsibility for the underlying event alleged to have given rise to this action.
Accordingly, it is HEREBY ORDERED that Plaintiff's Motion to Proceed on the unscreened First Amended Complaint (ECF No. 13) is DENIED.
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