Abercrombie v. Corcoran State Prison et al

Filing 9

ORDER for Plaintiff to Notify Court of his Intentions, signed by Magistrate Judge Gary S. Austin on 12/14/11. Thirty Day Deadline to File Written Notice to the Court. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD ABERCROMBIE,

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1:11-cv-00048-GSA-PC

Plaintiff,

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v.

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ORDER FOR PLAINTIFF TO NOTIFY COURT
OF HIS INTENTIONS
(Doc. 8.)

DR. KAUT, et al.,

THIRTY DAY DEADLINE TO FILE WRITTEN
NOTICE TO THE COURT

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Defendants.
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/
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I.

BACKGROUND

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Richard Abercrombie (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing

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this action on January 11, 2011. (Doc. 1.)

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The Court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an order on

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November 22, 2011, requiring Plaintiff to either (1) file an amended complaint, or (2) notify the

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Court of his willingness to proceed with the original Complaint on the claims found cognizable by

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the Court. (Doc. 7.) On November 29, 2011, Plaintiff filed both an amended complaint and a notice

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informing the Court that he is willing to proceed on the claims found cognizable by the Court in the

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November 22, 2011 order. (Doc. 8.)

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Plaintiff must explain his intentions in filing both an amended complaint and a notice to the

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Court. Thus, Plaintiff shall be required to file a written notice to the Court within thirty days,

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informing the Court whether:

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(1)

He wishes to proceed with the original Complaint filed on January 11, 2011, against

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only defendant Dr. Kaut, on the medical claims found cognizable by the Court in the

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November 22, 2011 order,

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OR

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(2)

He wishes to proceed with the Amended Complaint filed on November 29, 2011.

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If Plaintiff chooses to proceed with the original Complaint, the Court will begin the process

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to initiate service upon defendant Dr. Kaut by sending Plaintiff service documents to complete and

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return to the Court. Upon receipt of the service documents from Plaintiff, the Court shall direct the

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United States Marshal to serve a summons and copy of the original Complaint on Dr. Kaut. The

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Amended Complaint shall be stricken from the record, as if it had never been filed.

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If Plaintiff chooses to proceed with the Amended Complaint, the Court shall schedule the

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Amended Complaint for screening by the Court, to determine if Plaintiff has stated any cognizable

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claims in the Amended Complaint. If the Court finds that Plaintiff has not stated any claims in the

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Amended Complaint, the Court must dismiss the Amended Complaint pursuant to 28 U.S.C. §

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1915A(b)(1),(2).

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II.

ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Within thirty days from the date of service of this order, Plaintiff is required to send

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written notice to the Court whether:

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(1)

He wishes to proceed with the original Complaint filed on January 11, 2011,

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against only defendant Dr. Kaut, on the medical claims found cognizable by

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the Court in the November 22, 2011 order,

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OR

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(2)

He wishes to proceed with the Amended Complaint filed on November 29,
2011; and
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2.

The failure to comply with this order may result in the dismissal of this action.

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IT IS SO ORDERED.
Dated:
6i0kij

December 14, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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