Jones v. Oliveira, et al.

Filing 19

ORDER on Plaintiff's Motion to proceed 18 signed by Magistrate Judge Sheila K. Oberto on 9/30/2018. (First Amended Complaint due within 21-Days). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES B. JONES,

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Plaintiff,

Case No. 1:17-cv-01311-LJO-SKO (PC)
ORDER ON PLAINTIFF’S
MOTION TO PROCEED

v.
(Doc. 18)

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M. OLIVEIRA, et al.,
TWENTY-ONE (21) DAY DEADLINE

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Defendants.

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Plaintiff, Charles B. Jones, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. On May 15, 2018, the Court issued an order

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finding that Plaintiff stated a cognizable retaliation claim against Defendants J. Garcia, Ortega,

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John Doe #1, and John Doe #3, but granted Plaintiff leave to file a first amended complaint curing

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identified deficiencies. (Doc. 13.) Plaintiff was directed to either file a first amended complaint,

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or a statement indicating that he desired to proceed solely on the cognizable retaliation claim

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against the four Defendants identified, dismissing all other claims and defendants. (Id.)

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Plaintiff requested and received an extension of time to file a first amended complaint.

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(Docs. 14, 15.) Following the passage of more than the allowed time without Plaintiff having

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filed a response, on July 26, 2018, an order issued for Plaintiff to show cause why the action

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should not be dismissed for his failure to comply with the court’s order. (Doc. 17.)

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In response, Plaintiff filed a motion apologizing for his delayed response and requesting to

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proceed on the retaliation claim identified in the screening order against Defendants “J. Garcia, J.

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Ortega, J. Mendez, and John Doe #3.” (Doc. 18 (emphasis added).) It appears that Plaintiff has
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ascertained that the true name of John Doe #1 is “J. Mendez.” However, Plaintiff did not state as

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much in his motion. If “J. Mendez” is the true name of John Doe #1, Plaintiff must amend the

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Complaint to reflect this correction.
The Court provides Plaintiff with opportunity to amend to insert “J. Mendez” in place and

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instead of “John Doe #1.” Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Accordingly, a copy of the Complaint will be sent to Plaintiff with this order, and he is granted

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leave to draw a line through “John Doe #1” and write “J. Mendez” where Plaintiff’s allegations

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are attributable to “J. Mendez.” Plaintiff should also write “FIRST AMENDED” above the case

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number on the first page of the corrected Complaint. By so doing, Plaintiff will voluntarily

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dismiss all claims and defendants other than the retaliation claims identified as cognizable in the

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First Screening Order (Doc. 13).

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff’s motion, filed on August 6, 2018, (Doc. 18), to proceed on the retaliation
claim identified in the First Screening Order is GRANTED;

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2.

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The Clerk of the Court is directed to send Plaintiff a copy of the Complaint, filed
on October 2, 2018, (Doc. 1);

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3.

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Within twenty-one (21) days of the date of service of this order, Plaintiff SHALL

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file a first amended complaint striking “John Doe #1,” and setting forth “J.

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Mendez,” where appropriate; and
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If Plaintiff fails to comply with this order, recommendation will issue for this
action to be dismissed for Plaintiff’s failure to obey a court order.

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IT IS SO ORDERED.
Dated:

September 30, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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