Miller v. CDC Warden and Staff et al

Filing 74

ORDER Denying 67 Motion as Moot signed by Magistrate Judge Dennis L. Beck on 4/19/2010. (Flores, E)

1 2 3 4 5 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77e0d6 27 28 1 Plaintiff Ernest Miller ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action. This action was closed on September 8, 2009, when the Court dismissed this action for failure to state a claim upon which relief may be granted. On September 11, 2009, Plaintiff filed a motion for an answer to docket 55, which was the Court's February 13, 2009 order directing the United States Marshal to serve the first amended complaint, filed June 9, 2008, on defendant Ortize. Defendant Ortize was never served, and on September 11, 2009, the United States Marshal returned the summons unexecuted. Plaintiff filed a second amended complaint on May 11, 2009, which became the operative pleading. Because the first amended complaint was no longer the operative pleading, the Court's February 13, 2009 order is moot. Accordingly, Plaintiff's motion, filed September 11, 2009, is DENIED as moot. IT IS SO ORDERED. Dated: v. CDC WARDEN AND STAFF, et al., Defendants. / ERNEST MILLER, Plaintiff, CASE NO. 1:07-cv-01416-LJO-DLB PC ORDER DENYING MOTION AS MOOT (Doc. 67)

UNITED STATES DISTRICT COURT

April 19, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE