Norwood v Nanganama, et al.,

Filing 56

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 05/09/11 ORDERING that the amended complaint filed on 05/02/11, is the operative complaint in this case. Defendant Byers may stand on his existing answer or file an amended answer within 14 days. Also, RECOMMENDING that defendant Dr. Ramen be dismissed from this action. Referred to Judge Lawrence K. Karlton. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY NORWOOD,

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Plaintiff,

No. CIV S-09-2929 LKK GGH P

vs.
NANGANAMA, et al.,

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Defendants.

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ORDER &
FINDINGS AND RECOMMENDATIONS
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Plaintiff is a prisoner who is proceeding pro se and in forma pauperis. Plaintiff

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seeks relief pursuant to 42 U.S.C. § 1983. This case continues against defendants Dr. Ramen and

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Byers. Plaintiff alleges that defendants provided inadequate medical care concerning plaintiff’s

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skin condition and body bugs.

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On January 11, 2011, the court granted Dr. Ramen’s motion to dismiss as plaintiff

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failed to state a claim pursuant to Rule 12(b)(6), however plaintiff was provided a final

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opportunity to file an amended complaint for the specific purpose of providing additional

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information concerning Dr. Ramen.1 Plaintiff has filed an amended complaint. Doc. 55.

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However, the amended complaint contains no new facts concerning Dr. Ramen, and does not

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even name Dr. Ramen. Plaintiff was specifically instructed in the November 18, 2010, findings

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After service difficulties, defendant Byers answered the complaint on February 7, 2011.
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and recommendations and in the April 14, 2011, order, that the amended complaint should be

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filed with respect to Dr. Ramen. As plaintiff has failed to even name this defendant, Dr. Ramen

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should be dismissed from this action.

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The amended complaint contains the same general facts and claims regarding

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defendant Byers with some new allegations. Therefore, the amended complaint filed on May 2,

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2011, will be the operative complaint in this case. While defendant Byers has already answered

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the complaint, he may file an amended answer, within 14 days, or stand on the current answer.2

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Accordingly, IT IS HEREBY ORDERED that the amended complaint filed on
May 2, 2011, is the operative complaint in this case. Defendant Byers may stand on his existing
answer or file an amended answer within 14 days.

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IT IS HEREBY RECOMMENDED that defendant Dr. Ramen be dismissed from
this action.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 9, 2011
/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE
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GGH: AB norw2929.dis

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A discovery and scheduling order will be issued once it is determined if defendant Byers
will file an amended answer or stand on the existing answer.