Simons v. Sundaram et al

Filing 14

ORDER Requesting Clarification from Plaintiff, signed by Magistrate Judge Gary S. Austin on 10/21/16. Thirty-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL SIMONS,

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Plaintiff,

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1:15-cv-00130-GSA-PC
ORDER REQUESTING CLARIFICATION
FROM PLAINTIFF

vs.
THIRTY DAY DEADLINE TO RESPOND
J. SUNDARAM, et al.,

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Defendants.

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This order is being issued for Plaintiff to clarify whether (1) he intends to proceed only

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against defendants Sundaram and Ugueze on the medical claims found cognizable by the Court

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in the original Complaint filed on January 26, 2015 (ECF No. 1); or (2) he intends to proceed

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with the First Amended Complaint filed on December 21, 2015 (ECF No. 11). Plaintiff shall

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have thirty days to respond.

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I.

BACKGROUND

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Michael Simons (“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. On November 25, 2015, the Court

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found that Plaintiff stated cognizable claims in the original Complaint, filed on January 1,

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2015, against defendants Sundaram and Ugueze, on Plaintiff’s medical claims under the Eighth

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Amendment. (ECF No. 10.) Plaintiff was granted thirty days in which to either: (1) file a First

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Amended Complaint; or (2) notify the Court that he is willing to proceed only with the claims

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found cognizable by the Court. (Id.)

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On December 31, 2015, Plaintiff filed both a First Amended Complaint and a notice
that he is willing to proceed only with the cognizable claims. (ECF Nos. 11, 12.)
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The Court’s December 21, 2015 order gave Plaintiff a choice, and Plaintiff was required

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to make one choice or the other. Plaintiff has made both choices and therefore the Court does

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not know how Plaintiff wishes to proceed in this action. Therefore, the Court now requests

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clarification from Plaintiff of his intentions within thirty days.

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If Plaintiff wishes to proceed with the original Complaint, the Court shall initiate

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service of process upon defendants Sundaram and Ugueze by sending Plaintiff service

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documents to complete and return to the Court. If Plaintiff wishes to proceed with the First

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Amended Complaint, the Court shall screen the First Amended Complaint in due course.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Within thirty days of the date of service of this order, Plaintiff shall respond in

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writing to this order, clarifying whether:

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(a)

He wishes to proceed only against defendants Sundaram and Ugueze on

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the medical claims found cognizable by the Court in the original

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Complaint filed on January 26, 2015;

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OR

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(b)

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December 21, 2015;

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He wishes to proceed with the First Amended Complaint filed on

Plaintiff must make only one choice; and
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If Plaintiff fails to comply with order, this case may be dismissed, without
prejudice, for failure to comply with a court order.

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IT IS SO ORDERED.
Dated:

October 21, 2016

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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