Nguyen v. Biter et al

Filing 39

ORDER Denying Motion as Unnecessary and Granting Plaintiff Thirty Days Within Which to File an Amended Complaint 38 , signed by Magistrate Judge Sheila K. Oberto on 12/12/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ANTHONY NGUYEN,

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CASE NO. 1:11-cv-00809-AWI-SKO PC

Plaintiff,

ORDER DENYING MOTION AS
UNNECESSARY AND GRANTING
PLAINTIFF THIRTY DAYS WITHIN WHICH
TO FILE AN AMENDED COMPLAINT

v.
M. D. BITER,

(Doc. 38)
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Defendant.
/

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Plaintiff Anthony Nguyen, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on May 18, 2011. On October 11, 2011, the Court

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screened Plaintiff’s complaint and ordered him to either file a notice of willingness to proceed only

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on the claim found to be cognizable or file an amended complaint. Plaintiff filed a notice of

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willingness to proceed only on his cognizable claim against Defendant Biter on October 27, 2011,

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and in response, the Honorable Anthony W. Ishii dismissed Defendants Adams, Tarnoff, Pool, and

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Foston from this action on October 31, 2011. Now pending before the Court is Plaintiff’s motion

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seeking leave to amend, filed on December 8, 2011.

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Plaintiff has not previously amended and therefore, he may amend once as a matter of right

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without leave of court. Fed. R. Civ. P. 15(a)(1). However, given that the next phase of litigation is

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service of the complaint by the United States Marshal, and this action cannot sit idle indefinitely, the

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Court will grant Plaintiff thirty days within which to file an amended complaint. If Plaintiff fails to

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do so by the deadline, the Court will issue an order directing the United States Marshal to initiate

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service of the original complaint on Defendant Biter.
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Accordingly, Plaintiff’s motion to amend is HEREBY DENIED as unnecessary, but Plaintiff

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is GRANTED thirty (30) days within which to file an amended complaint. If an amended

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complaint is not filed by the deadline, the United States Marshal will be directed to initiate service

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of the original complaint.

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IT IS SO ORDERED.

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Dated:
ie14hj

December 12, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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