Smith v. Diagnostics and Evaluation Center et al

Filing 45

ORDER - The plaintiff's motion to amend (Filing No. 41 ) is granted. The plaintiff shall have until February 6, 2015, to file a second amended complaint. The plaintiff's motion to issue summons (Filing No. 42 ) is granted to the exten t the necessary forms will be sent to the plaintiff after the plaintiff files a second amended complaint. Upon filing of the second amended complaint, the Clerk of the court shall send a summons form and a USM-285 form to the plaintiff. The plaint iff shall, as soon as possible, complete the forms and send the completed forms back to the Clerk of the Court. In the absence of the forms, service of process cannot occur. Upon receipt of the completed forms, the Clerk of the Court will sign the summons form, to be forwarded with a copy of the second amended complaint to the U.S. Marshal for service of process on Sabatka-Rine. The Marshal shall serve the summons and the second amended complaint without payment of costs or fees. Service may be by certified mail pursuant to Federal Rule of Civil Procedure 4 and Nebraska law in the discretion of the Marshal. The Clerk of the Court is directed to set a pro se case management deadline in this case with the following text: "Febr uary 9, 2015: Check for filing of second amended complaint and issuance of summons form and USM-285 form to plaintiff." Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk of the Court within fourteen (14) days after being served with a copy of this Order. Failure to timely object may constitute a waiver of any objection. Ordered by Magistrate Judge Thomas D. Thalken. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

DAVID SMITH,
Plaintiff,

4:13CV3041

vs.
ORDER
SARGENT TURNER and
CORPORAL BELL,
Defendants.
This matter is before the court on the plaintiff’s, David Smith, motion to amend
(Filing No. 41) and motion to issue summons (Filing No. 42). The plaintiff seeks to
amend his Amended Complaint and include Diane Sabatka-Rine (Sabatka-Rine) as a
defendant in this matter. See Filing No. 41. The plaintiff alleges Sabatka-Rine was
aware of the underlying incidents alleged in this lawsuit. Id. The defendants did not file
any opposition to the plaintiff’s motions. The court will grant the plaintiff leave to file a
second amended complaint to incorporate his allegations against Sabatka-Rine. See
Fed. R. Civ. P. 15(a)(2) (“[A] party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should freely give leave when
justice so requires.”). Upon consideration,

IT IS ORDERED:
1.

The plaintiff’s motion to amend (Filing No. 41) is granted. The plaintiff

shall have until February 6, 2015, to file a second amended complaint.
2.

The plaintiff’s motion to issue summons (Filing No. 42) is granted to the

extent the necessary forms will be sent to the plaintiff after the plaintiff files a second
amended complaint. Upon filing of the second amended complaint, the Clerk of the
court shall send a summons form and a USM-285 form to the plaintiff. The plaintiff
shall, as soon as possible, complete the forms and send the completed forms back to
the Clerk of the Court. In the absence of the forms, service of process cannot occur.
Upon receipt of the completed forms, the Clerk of the Court will sign the summons form,
to be forwarded with a copy of the second amended complaint to the U.S. Marshal for

service of process on Sabatka-Rine. The Marshal shall serve the summons and the
second amended complaint without payment of costs or fees.

Service may be by

certified mail pursuant to Federal Rule of Civil Procedure 4 and Nebraska law in the
discretion of the Marshal.
3.

The Clerk of the Court is directed to set a pro se case management

deadline in this case with the following text: “February 9, 2015: Check for filing of
second amended complaint and issuance of summons form and USM-285 form to
plaintiff.”

ADMONITION
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk
of the Court within fourteen (14) days after being served with a copy of this Order.
Failure to timely object may constitute a waiver of any objection. The brief in support of
any objection shall be filed at the time of filing such objection. Failure to file a brief in
support of any objection may be deemed an abandonment of the objection.

Dated this 6th day of January, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

2