Cofield v. Unknown

Filing 19

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/24/2013 VACATING the 13 findings and recommendations; within 30 days, plaintiff shall file an amended complaint; and plaintiff's 15 request for an order directing defendants to show cause is DENIED. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT E. COFIELD,
Plaintiff,

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No. 2:12-cv-3060 KJM EFB P

Defendant.

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ORDER

vs.
UNKNOWN,

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/

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Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).

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On April 9, 2013, the court recommended that this action be dismissed for failure to

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prosecute after plaintiff failed to file an amended complaint. On April 24, 2013, however,

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plaintiff filed an amended complaint. Therefore, the court will vacate the April 9, 2013 findings

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and recommendations.

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Plaintiff’s amended complaint, however, will not be considered by the court because

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plaintiff has not signed it. See Dckt. No. 14. Rule 11 of the Federal Rules of Civil Procedure

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requires that “[e]very pleading, written motion, and other paper . . . be signed by at least one

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attorney of record in the attorney’s name—or by a party personally if the party is unrepresented.”
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Fed. R. Civ. P. 11(a). Additionally, plaintiff is reminded that a complaint must also contain a

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caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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In addition to filing an unsigned amended complaint, plaintiff has also filed a motion for

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defendants to “show cause.” Plaintiff’s request is premature because there is no operative

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pleading in this action and there are no defendants against whom this court could enter an order

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or even direct service. If plaintiff properly files an amended complaint that states a cognizable

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claim, the court will order the United States Marshal to serve the amended complaint upon the

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named defendant(s).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The April 9, 2013 findings and recommendations (Dckt. No. 13) are vacated.

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2. Within 30 days, plaintiff shall file an amended complaint in accordance with the

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court’s orders. The amended complaint must bear the docket number assigned to this case and

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be titled “First Amended Complaint.” Failure to comply with this order may result in a

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recommendation that this action be dismissed.
3. Plaintiff’s request for an order directing defendants to show cause (Dckt. No. 15) is

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denied.

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Dated: June 24, 2013.

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