Wiseman v. Cate, et al.

Filing 21

ORDER DIRECTING Clerk of Court to File Plaintiff's First Amended Complaint Lodged March 16, 2015 and GRANTING Defendant Biter Thirty Days from the Date of Service of this Order to File a Response signed by Magistrate Judge Stanley A. Boone on 3/17/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHESTER RAY WISEMAN,

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Plaintiff,
v.

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MATTHEW CATE, et al.,

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Defendants.

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Case No.: 1:14-cv-00831-LJO-SAB (PC)
ORDER DIRECTING CLERK OF COURT TO
FILE PLAINTIFF’S FIRST AMENDED
COMPLAINT LODGED MARCH 16, 2015, AND
GRANTING DEFENDANT BITER THIRTY DAYS
FROM THE DATE OF SERVICE OF THIS ORDER
TO FILE A RESPONSE
[ECF No. 20]

Plaintiff Chester Ray Wiseman is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
On October 3, 2014, the Court screened Plaintiff’s complaint and found that Plaintiff stated a

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cognizable claim for deliberate indifference against Defendant Martin D. Biter. (ECF No. 8.) The

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Court granted Plaintiff the option of filing a first amended complaint or notifying the Court of his

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intent to proceed only on his claim against Defendant Biter.

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On October 20, 2014, Plaintiff notified the Court of his intent to proceed against Defendant

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Biter only. (ECF No. 9.) Accordingly, on November 19, 2014, the Court dismissed all other claims

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and defendants from the action for failure to state a cognizable claim for relief, and ordered service of

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process be initiated as to Defendant Biter for a claim of deliberate indifference. (ECF No. 10.)

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On December 12, 2014, the Court directed the United States Marshal to initiate service on
Defendant Biter. (ECF No. 13.) On February 19, 2015, Defendant Biter filed a request to extend the
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time to file a response to the complaint, which was granted. (ECF Nos. 15, 16.) Defendant Biter’s

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response is currently due on or before March 22, 2015. (ECF No. 16.)
On March 16, 2015, Plaintiff submitted a first amended complaint which was lodged by the

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Court. (ECF No. 20.) Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend

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the party=s pleading once as a matter of course at any time before a responsive pleading is served.

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Otherwise, a party may amend only by leave of the court or by written consent of the adverse party,

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and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). In this case, a

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responsive pleading has not been served and plaintiff has not previously amended his complaint.

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Therefore, Plaintiff may file an amended complaint without leave of the court, and the Court will

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direct the Clerk of Court to file Plaintiff’s first amended complaint and grant Defendant Biter thirty

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days to file a response.1

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

The Clerk of Court is directed to file Plaintiff’s first amended complaint, lodged March
16, 2015 (ECF No. 20); and

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2.

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Within thirty (30) days from the date of service of this order, Defendant Biter shall file
a response to Plaintiff’s first amended complaint.

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IT IS SO ORDERED.

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Dated:

March 17, 2015
UNITED STATES MAGISTRATE JUDGE

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In an order issued concurrently herewith, the Court has found that Plaintiff states a cognizable claim of deliberate
indifference in violation of the Eighth Amendment against Defendant Trimble and has ordered service by the United States
marshal. 28 U.S.C. § 1915A; Fed. R. Civ. P. 4(c)(3).

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