Jesse Olivas v. Neubarth et al

Filing 31

ORDER Denying 20 Motion to Amend and for 17 Extension of Time signed by Magistrate Judge Gary S. Austin on 02/01/2010. ORDER DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms. Service is appropriate for J. Neubarth. Clerk to send plaintiff: 1 Summons, 1 USM-285 Form, and 1 copy of the Amended Complaint filed on 09/15/2009. Case Management Deadline: 3/8/2010.(Flores, E)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 (Doc. 27) 16 17 This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Jesse Olivas, a 18 state prisoner proceeding pro se and in forma pauperis. Plaintiff filed this action on May 18, 2009, 19 and his complaint was found to state a cognizable claim for relief by order filed on August 20, 2009. 20 Plaintiff was ordered to complete and return service documents within thirty days so that service of 21 process could be initiated. On September 8, 2009, Plaintiff filed a motion seeking an extension of 22 time to comply with the order, and on September 14, 2009, Plaintiff filed a motion seeking leave to 23 file an amended complaint. Plaintiff filed an amended complaint on September 15, 2009. 24 At this stage in the proceedings, Plaintiff may amend once as a matter of right. Fed. R. Civ. 25 P. 15(a). Therefore, Plaintiff is not required to obtain leave of court to amend, and the amended 26 complaint has been successfully filed. Plaintiff's motion seeking leave of court to amend is denied 27 as unnecessary. 28 1 / v. (Docs. 17 and 20) DR. J. NEUBARTH, Defendant. ORDER FINDING SERVICE OF AMENDED COMPLAINT APPROPRIATE, AND FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS JESSE OLIVAS, Plaintiff, CASE NO. 1:09-cv-00872-GSA PC ORDER DENYING MOTION TO AMEND AND FOR EXTENSION OF TIME

UNITED STATES DISTRICT COURT

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The Court has screened Plaintiff's amended complaint pursuant to 28 U.S.C. § 1915A, and finds that it states a claim against Defendant Neubarth for violation of the Eighth Amendment. Fed. R. Civ. P. 8(a)(2). Therefore, service of the amended complaint shall be authorized, and in light of this order, Plaintiff's motion for an extension of time to comply with the Court's order of August 20, 2009, is denied as moot. Accordingly, it is HEREBY ORDERED that: 1. 2. Plaintiff's motions for an extension of time and for leave to amend are DENIED; Service shall be initiated on the following defendant: J. NEUBARTH, M.D. 3. The Clerk of the Court shall send Plaintiff one (1) USM-285 form, one (1) summons, a Notice of Submission of Documents form, an instruction sheet and a copy of the amended complaint filed September 15, 2009. 4. Within thirty (30) days from the date of this order, Plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the Court with the following documents: a. b. c. 5. Completed summons; Completed USM-285 form; and Two (2) copies of the endorsed amended complaint filed September 15, 2009.

Plaintiff need not attempt service on the defendant and need not request waiver of service. Upon receipt of the above-described documents, the Court will direct the United States Marshal to serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment of costs.

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The failure to comply with this order will result in a recommendation that this action be dismissed.

IT IS SO ORDERED. Dated: 6i0kij

February 1, 2010

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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