Demerson v. Woodford et al

Filing 66

ORDER GRANTING IN PART 65 Motion for order to clerk to service missing claim to Plaintiff; Clerk to provide Plaintiff a copy of Second Amended Complaint 39 ; Plaintiff is Warned that if he attempts to file a third amended complaint in contravention of the Courts orders, it will be stricken from the record. Signed by District Judge Lawrence J. O'Neill on 7/15/2010. (Attachments: # 1 Second Amended Complaint) (Marrujo, C)

(PC) Demerson v. Woodford et al

Doc. 66

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 / 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Edward Demerson, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 29, 2008. (Doc. 1.) Pursuant to the Court's order filed on June 22, 2010, this action is proceeding on Plaintiff's second amended complaint, filed June 24, 2009, against Defendants Phillips, Campos, Amaro, Clausing, Bardonnex, Munoz, and Cartagina for using excessive physical force against Plaintiff, and against Defendants Munoz, Cartagina, Gregory, and Hillard for deliberate indifference to Plaintiff's serious medical needs. (Doc. 59.) Plaintiff was ordered to effect service of process within one-hundred twenty days, and provided with a copy of the second amended complaint and the service documents. (Doc. 60.) On July 14, 2010, Plaintiff filed what he entitled "Plaintiff"s [sic] Ex Parte Motion for Order to Clerk to Service Missing Claim, to Plaintiff for Service to Defendant's [sic]." (Doc. 65.) In the motion, Plaintiff asserts that he received the order but the claim was missing and he cannot proceed 1
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UNITED STATES DISTRICT COURT

EDWARD DEMERSON, Plaintiff, v. JEANNE S. WOODFORD, et al.,

CASE NO. 1:08-cv-00144-LJO-SMS PC ORDER GRANTING MOTION IN PART, AND DIRECTING CLERK'S OFFICE TO SEND PLAINTIFF COPY OF SECOND AMENDED COMPLAINT FILED ON JUNE 24, 2009 (Doc. 65)

Defendants. ORDER WARNING PLAINTIFF THAT IF HE ATTEMPTS TO FILE A THIRD AMENDED COMPLAINT IN CONTRAVENTION OF THE COURT'S ORDERS, IT WILL BE STRICKEN (Doc. 65)

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without it. Plaintiff requests a copy. Although it is not entirely clear, it appears that Plaintiff is contending he did not receive a copy of the second amended complaint, which the Clerk's Office was directed to provide. Plaintiff's motion will be granted to the extent that Plaintiff will be provided with another copy of his second amended complaint so that he may initiate service of process. Plaintiff also represents that he will be addressing the Court with respect to his third amended complaint, and with a new third amended claim. Plaintiff has already amended once as a matter of right, Fed. R. Civ. P. 15(a), and the Court very generously waited six months for the submission of the third amended complaint in compliance with the order of December 15, 2009. (Doc. 49.) Plaintiff failed to comply and the second amended complaint is now the operative pleading, with the non-cognizable claims dismissed for failure to state a claim. The window of time within which to file a third amended complaint without leave of court has expired. If Plaintiff attempts to file a third amended complaint in contravention of the Court's orders, it will be stricken from the record. Based on the foregoing, it is HEREBY ORDERED that: 1. Plaintiff's motion is granted in part and the Clerk's Office shall provide Plaintiff with another copy of the second amended complaint filed on June 24, 2009; and 2. Plaintiff is warned that if he attempts to file a third amended complaint in contravention of the Court's orders, it will be stricken from the record.

IT IS SO ORDERED. Dated: b9ed48 July 15, 2010 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

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