Morrison v. O'Reilly

Filing 14

ORDER DIRECTING PLAINTIFF TO AMEND COMPLAINT. Signed by Judge Lucy H. Koh on 10/27/11. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 10/27/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CURTIS LEE MORRISON,

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Plaintiff,
v.
ELANA O’REILLY,
Defendant.

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No. C 11-1896 LHK (PR)
ORDER DIRECTING
PLAINTIFF TO AMEND
COMPLAINT

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Plaintiff, a California state prisoner, currently housed at California State Prison - Solano,

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and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. In his

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complaint, Plaintiff claims he sought access to DNA evidence but has been denied, in violation

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of his right to due process. On July 5, 2011, the Court ordered service of the complaint upon

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Deputy District Attorney Elana O’Reilly. On September 2, 2011, the summons was returned

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unexecuted because she has not worked at the District Attorney’s Office “for some time.”

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The failure to name the proper defendant in the caption of a complaint does not require

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dismissal of the complaint where the allegations in the body of the complaint make it plain that

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the party is intended as a defendant. See Barsten v. Dep’t of the Interior, 896 F.2d 422, 423-24

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(9th Cir. 1990). Thus, Plaintiff is directed to amend his complaint to name, at the very least, the

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District Attorney of Contra Costa County. See, e.g., Skinner v. Switzer, 131 S. Ct. 1289 (2011);

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District Attorney’s Office For The Third Jud. Dist. v. Osborne, 129 S. Ct. 2308 (2009).

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Within thirty (30) days of the filing date of this order, Plaintiff shall file his amended

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Order Directing Plaintiff to Amend Complaint
P:\pro-se\sj.lhk\cr.11\morrison896nameac

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complaint naming the intended defendant. Failure to file an amended complaint within thirty

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days and in accordance with this order may result in a dismissal of this action.

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It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court and all

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parties informed of any change of address and must comply with the Court’s orders in a timely

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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
10/27/11
DATED:

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LUCY H. KOH
United States District Judge

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Order Directing Plaintiff to Amend Complaint
P:\pro-se\sj.lhk\cr.11\morrison896nameac

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