Holt v. Nicholas et al

Filing 12

ORDER re 11 signed by Magistrate Judge Dennis L. Beck on 11/16/2009. Within Forty (40) Days of Service of This Order Plaintiff is HEREBY ORDERED to Either File a First Amended Complaint, OR File Written Notice Stating That he Wishes to Proceed on his Original Complaint, filed May 4, 2009. Plaintiff Must Also Submit the Completed Service Documents. Failure to comply with this order will result in the dismissal of this action for failure to obey a court order. Filing Deadline: 12/30/2009. (Bradley, A)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 / FORTY (40) DAY DEADLINE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Virgil E. Holt ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. By order issued October 1, 2009, the Court screened Plaintiff's complaint and found that it stated a cognizable Eighth Amendment claim against the twenty-three named defendants. Plaintiff was forwarded service documents for completion and return within thirty days. On October 16, 2009, Plaintiff filed a request for an extension of time to do so, which was granted by order issued October 21, 2009. Now pending before the Court is Plaintiff's "Request to Postpone Process of Service Upon Defendants." (Doc. 11.) Plaintiff states that he intends to file an amended complaint, and requests that service be postponed until after he files his amended complaint. Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. However, Plaintiff has not indicated when he will file a First Amended Complaint ("FAC"), and the Court will not hold this action in abeyance indefinitely. 1 v. (Doc. 11) R. NICHOLAS, et al., Defendants. VIRGIL E. HOLT, Plaintiff, ORDER CASE NO. 1:09-cv-00800 AWI DLB PC

UNITED STATES DISTRICT COURT

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Accordingly, within forty (40) days of service of this order, Plaintiff is HEREBY ORDERED to either: 1. 2. File a First Amended Complaint1; or File written notice stating that he wishes to proceed on his original complaint, filed May 4, 2009. Plaintiff must also submit the completed service documents. Failure to comply with this order will result in the dismissal of this action for failure to obey a court order.

IT IS SO ORDERED. Dated: 3b142a

November 16, 2009

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

The United States Marshal will not be directed to serve the summons(es) and FAC until the FAC has been screened and found to state a cognizable claim. 28 U.S.C. §1915A(a); 28 U.S.C. 1915(e).

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