Asberry v. Biter

Filing 14

ORDER GRANTING 9 MOTION TO NAME DEFENDANT; DEEMING 1 COMPLAINT AMENDED TO SUBSTITUTE C. RELEVANTE IN PLACE OF DOE 3 AND DIRECTING CLERK'S OFFICE TO CORRECT THE DOCKET TO REFLECT SUBSTITUTION signed by Magistrate Judge Michael J. Seng on 2/17/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,
Plaintiff,

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Case No. 1:16-cv-01741-DAD-MJS (PC)
ORDER GRANTING MOTION TO NAME
DEFENDANT

v.
WARDEN BITER, et al.,
Defendants.

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(ECF NO. 9)
ORDER DEEMING COMPLAINT (ECF
No. 1) AMENDED TO SUBSTITUTE
C. RELEVANTE IN PLACE OF DOE 3
ORDER DIRECTING CLERK’S OFFICE
TO CORRECT THE DOCKET TO
REFLECT SUBSTITUTION

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. The Court screened Plaintiff’s
complaint (ECF No. 1), and found that it stated the following cognizable claims: an
Eighth Amendment claim for medical indifference against Defendants Lozovoy and Doe
3; and Eighth Amendment conditions of confinement and First Amendment retaliation
claims against Defendants Ferris and Godfrey. The remaining claims were not
cognizable as pled. (ECF No. 5.)

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Plaintiff was ordered to file an amended complaint or notify the Court in writing if

2 he wished to proceed only on the cognizable claims. (Id.) Plaintiff responded that he
3 does not wish to amend and instead wishes to proceed with the cognizable claims.
4 (ECF No. 7.) The Court will, by separate order, address dismissal of the non-cognizable
5 claims and service of the cognizable claims.
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Presently before the Court is Plaintiff’s “Motion to Name Defendant.” (ECF No.

7 9.) The Court construes the motion as a request to amend the complaint to substitute
8 Physician Assistant C. Relevante in place of Doe 3. Plaintiff states that he has obtained
9 medical records identifying Relevante as the person who treated him on June 8, 2016,
10 the date on which Plaintiff alleged he was seen by Doe 3.
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Based on Plaintiff’s submission, it appears that C. Relevante is the name of the

12 individual whose actions are at issue in this case. Accordingly, the Court will deem
13 Plaintiff’s complaint amended to substitute C. Relevante in place of Defendant Doe 3.
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Based on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff’s “Motion to Name Defendant” (ECF No. 9), construed as a motion

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to amend, is GRANTED;

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2. Plaintiff’s complaint (ECF No. 1) is deemed amended to substitute C.

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Relevante in place of Defendant Doe 3;

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3. The Clerk‘s Office is directed to correct the docket to reflect the

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substitution.

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IT IS SO ORDERED.
Dated:

February 17, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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