Sotelo v. Birring, et al.
ORDER GRANTING 81 Motion to Amend, VACATING Hearing Date, DIRECTING Clerk's Office to File Second Amended Complaint, and REQUIRING Defendants to File a Response Within Thirty Days; ORDER REQUIRING Plaintiff to Notify Court Within Ten Days Whether he Intends to Effect Service on Defendant Green, signed by Magistrate Judge Sheila K. Oberto on 3/22/2012. Hearing set for April 4, 2012, at 9:30 a.m. is VACATED. (Marrujo, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ROBERTO A. SOTELO,
CASE NO. 1:08-cv-01342-LJO-SKO
ORDER GRANTING MOTION TO AMEND,
VACATING HEARING DATE, DIRECTING
CLERK’S OFFICE TO FILE SECOND
AMENDED COMPLAINT, AND REQUIRING
DEFENDANTS TO FILE A RESPONSE
WITHIN THIRTY DAYS
T. BIRRING, et al.,
(Docs. 81 and 82)
ORDER REQUIRING PLAINTIFF TO NOTIFY
COURT WITHIN TEN DAYS WHETHER HE
INTENDS TO EFFECT SERVICE ON
Plaintiff Roberto A. Sotelo, a state prisoner proceeding in forma pauperis, filed this civil
rights action pursuant to 42 U.S.C. § 1983 on September 10, 2008. This action is currently
proceeding on Plaintiff’s amended complaint, filed February 24, 2009, against Defendants Birring,
Das, Diep, and Coleman for acting with deliberate indifference to Plaintiff’s medical needs, in
violation of the Eighth Amendment.
On February 29, 2012, Plaintiff filed a motion seeking leave to file a second amended
complaint. Fed. R. Civ. P. 15(a). The motion is currently set for hearing on April 4, 2012, at 9:30
a.m. before the undersigned. Defendants filed a statement of non-opposition to the motion on March
14, 2012. Local Rule 230(c).
Accordingly, it is HEREBY ORDERED that:
Plaintiff’s motion to amend is GRANTED;
The hearing set for April 4, 2012, at 9:30 a.m. is VACATED;
The Clerk’s Office shall file the second amended complaint (Exhibit A, Doc. 81-1);
Defendants Birring, Das, Diep, and Coleman shall file their response to the second
amended complaint within thirty (30) days from the date of service of this order; and
Plaintiff’s counsel shall notify the Court within ten (10) days whether he intends to
have service of the second amended complaint effected on Defendant Green or
whether he wants the Court to order the United States Marshal to effect service.1
IT IS SO ORDERED.
March 22, 2012
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
In light of the scheduling order in place, the Court suggests that it may be best serve the resources of all
involved if Plaintiff’s counsel and Defendants’ counsel are able to reach an agreement regarding the appearance of
defense counsel on behalf of Defendant Green. However, Defendant Green is not required to waive formal service
as outlined in Federal Rule of Civil Procedure 4 and should he decline to do so, Plaintiff is entitled to service by the
Marshal in light of his in forma pauperis status. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
If Defendants’ counsel cannot or will not agree to appear on behalf of Defendant Green and Plaintiff seeks
service by the USM, Plaintiff’s counsel shall confirm for the Court Defendant’s medical licence number to ensure
accuracy of service. California Medical Board records list only one Barry Green, who resides out of state.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?