Dorian Davis v. Flores et al

Filing 33

ORDER DISMISSING Defendant Marta from this Action; Ordering Defendants to File Response to Plaintiff's First Amended Complatin; No further extensions of time will be granted, signed by District Judge Jeffrey T. Miller on 11/23/2009.(Amended Complaint due by 1/4/2010) (R. Marta terminated) (Martin, S)

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 vs. E .G . FLORES; J. CASTRO; T. B IL L IN G S ; A. HEDGPETH, D e f e n d a n ts . D O R IA N DAVIS aka W A L I AL-TAQI, C D C R #K-78041, P l a in tif f , Civil No. ORDER: (1 ) DISMISSING DEFENDANT M A R T A FROM THIS ACTION; AND (2 ) ORDERING DEFENDANTS TO F I L E RESPONSE TO PLAINTIFF'S F I R S T AMENDED COMPLAINT 08-1197 JTM (JMA)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION

On August 15, 2008, Plaintiff, an inmate currently incarcerated at Kern Valley State Prison located in Delano, California and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a) to commence a civil action; instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2].
-1ED Cal 1:08cv1197 JTM (JMA)

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The Court granted Plaintiff's Motion to Proceed IFP on August 21, 2008 [Doc. No. 4]. On November 26, 2008, this matter was reassigned to District Judge Jeffrey Miller for all further proceedings [Doc. No. 8]. This Court issued an Order directing the United States Marshal to effect service on the named Defendants on December 29, 2009. Defendants then filed two motions for extension of time to file a response to Plaintiff's Complaint. [Doc. Nos. 14, 17]. On June 2, 2009, Defendants filed a Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b) and 12(b)(6). Before the Court could rule on Defendants' Motion, Plaintiff sought leave to file a First Amended Complaint. The Court granted Plaintiff's request for leave to file a First Amended Complaint and denied Defendants' Motion as moot. See Aug. 4, 2009 Order at 2. On September 25, 2009, Plaintiff filed his First Amended Complaint ("FAC"). First, the Court takes judicial notice that Plaintiff has not renamed Defendant R. Marta in his First Amended Complaint. Defendants who are not named and all claims not re-alleged in an amended Complaint are considered waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Accordingly, Defendant Marta is hereby DISMISSED from this action. Second, Defendants have failed to file a response to Plaintiff's First Amended Complaint. Thus, the Court ORDERS Defendants to file a response to Plaintiff's First Amended Complaint no later than Monday, January 4, 2010. No further extensions of time will be granted.
D A T E D : November 23, 2009 Hon. Jeffrey T. Miller United States District Judge

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ED Cal 1:08cv1197 JTM (JMA)