Opinion
1:15-cv-00130-GSA-PC
10-21-2016
MICHAEL SIMONS, Plaintiff, v. J. SUNDARAM, et al., Defendants.
ORDER REQUESTING CLARIFICATION FROM PLAINTIFF THIRTY DAY DEADLINE TO RESPOND
This order is being issued for Plaintiff to clarify whether (1) he intends to proceed only against defendants Sundaram and Ugueze on the medical claims found cognizable by the Court in the original Complaint filed on January 26, 2015 (ECF No. 1); or (2) he intends to proceed with the First Amended Complaint filed on December 21, 2015 (ECF No. 11). Plaintiff shall have thirty days to respond.
I. BACKGROUND
Michael Simons ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On November 25, 2015, the Court found that Plaintiff stated cognizable claims in the original Complaint, filed on January 1, 2015, against defendants Sundaram and Ugueze, on Plaintiff's medical claims under the Eighth Amendment. (ECF No. 10.) Plaintiff was granted thirty days in which to either: (1) file a First Amended Complaint; or (2) notify the Court that he is willing to proceed only with the claims found cognizable by the Court. (Id.)
On December 31, 2015, Plaintiff filed both a First Amended Complaint and a notice that he is willing to proceed only with the cognizable claims. (ECF Nos. 11, 12.)
The Court's December 21, 2015 order gave Plaintiff a choice, and Plaintiff was required to make one choice or the other. Plaintiff has made both choices and therefore the Court does not know how Plaintiff wishes to proceed in this action. Therefore, the Court now requests clarification from Plaintiff of his intentions within thirty days.
If Plaintiff wishes to proceed with the original Complaint, the Court shall initiate service of process upon defendants Sundaram and Ugueze by sending Plaintiff service documents to complete and return to the Court. If Plaintiff wishes to proceed with the First Amended Complaint, the Court shall screen the First Amended Complaint in due course.
III. CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Within thirty days of the date of service of this order, Plaintiff shall respond in writing to this order, clarifying whether:
(a) He wishes to proceed only against defendants Sundaram and Ugueze on the medical claims found cognizable by the Court in the original Complaint filed on January 26, 2015;
OR
(b) He wishes to proceed with the First Amended Complaint filed on December 21, 2015;
Plaintiff must make only one choice; and
IT IS SO ORDERED.
2. If Plaintiff fails to comply with order, this case may be dismissed, without prejudice, for failure to comply with a court order.
Dated: October 21 , 2016
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE