Holt v. Scribner, et al.

Filing 34

ORDER, signed by District Judge David C. Bury on 8/28/09: Plaintiff's Motion to File Third Amended Complaint 32 is GRANTED and DENIED IN PART; The lodged Third Amended Complaint shall be stricken from the record; DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms. Service is appropriate for MTA/Nurse A. Chacone. Clerk to send plaintiff: (1) Summons, (1) USM-285 Forms, and (1) copy of the Second Amended Complaint filed on 2/20/09. (Notice of Submission of Documents ddl 9/30/2009) (Hellings, J)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 T h is Court's previous Order (Doc. No. 28 at 7 ¶¶3-25) allowed Plaintiff to amend and su b stitu te a Doe Defendant with a named individual, which is the primary gist of the recently lo d g e d Third Amended Complaint. This Court will allow that substitution and order service o f process on that Defendant. There is no need for Plaintiff to file an amended complaint to d elete and renumber claims that have already been dismissed by this Court's previous Order; it is a duplicative and unnecessarily time-consuming request to rectify a problem that does n o t exist. A c c o r d i n g l y, IT IS ORDERED that Plaintiff's Motion to File Third Amended Complaint (Doc. No. 3 2 ) is granted in part and denied in part. The Motion is granted in that Doe Defendant #1 is n o w substituted and named as Defendant MTA/Nurse A. Chacone, nunc pro tunc. The M o tio n is denied, in the interest of judicial economy, as an unnecessary duplication of this C o u rt's previous Order dismissing claims and counts, such that the lodged Third Amended vs. A . K. Scribner, et al., Defendants. Virgil E. Holt, Plaintiff, ) ) ) ) ) ) ) ) ) ) CV-1-06-1719-DCB P ORDER I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

C o m p la in t shall be stricken from the record. IT IS FURTHER ORDERED that Defendant MTA/Nurse A. Chacone must answer C o u n ts One, Four, Six, Nine, Ten, Eleven, and Fourteen of the Second Amended Complaint. T h e Clerk of Court must send Plaintiff a service packet including the Second Amended C o m p la in t (Doc. No. 27), this Order, a Notice of Submission of Documents form, an in s tru c tio n sheet, and copies of summons and USM-285 forms for Defendant Chacone. W ith in 30 days of the date of filing of this Order, Plaintiff must complete and return to the C le rk of Court the Notice of Submission of Documents. Plaintiff must submit with the Notice o f Submission of Documents: a copy of the Second Amended Complaint for each Defendant, a copy of this Order for each Defendant, a completed summons for each Defendant, and a c o m p lete d USM-285 for each Defendant. Plaintiff must not attempt service on Defendants a n d must not request waiver of service. Once the Clerk of Court has received the Notice of S u b m is s io n of Documents and the required documents, the Court will direct the United S ta te s Marshal to seek waiver of service from each Defendant or serve each Defendant. If P la in t iff fails to return the Notice of Submission of Documents and the required d o cu m en ts within 30 days of the date of filing of this Order, the Clerk of Court must, w ith o u t further notice, enter a judgment of dismissal of this action without prejudice. S e e Fed. R. Civ. P. 41(b). D A T E D this 28 th day of August, 2009.

-2-