Opinion
No. CIV S-08-2790 GGH P.
May 5, 2009
ORDER
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. ByOrder filed April 29, 2009, this court, having found plaintiff's original complaint stated a colorable complaint as to only one defendant and plaintiff having failed to file an amended complaint timely, dismissed two of the defendants named in the original complaint, but found the original complaint appropriate for service upon defendant S. Willis. On March 5, 2009, plaintiff's claims against two of the defendants named in the original complaint had been dismissed with leave to file an amended complaint within thirty days.
However, although somewhat belatedly, plaintiff had filed an amended complaint, naming only the defendant S. Willis, against whom he has set forth a cognizable claim pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). Therefore, notwithstanding the April 29, 2009, Order (docket # 13), plaintiff will be permitted to proceed on the amended complaint, filed on April 23, 2009. The amended complaint now supersedes the original complaint.
It is evident that plaintiff includes the name of D.K. Sisto as a defendant only as part of the case caption from the original filing of this case; internally within the amended pleading plaintiff does not set Sisto forth as a defendant or make allegations against him.
The amended complaint states a colorable claim for relief against defendant S. Willis. If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.
In accordance with the above, IT IS HEREBY ORDERED that:
1. The original complaint has been superseded by the April 23, 2009 (docket # 12) amended complaint;
2. Service is appropriate for the following defendant: S. Willis.
3. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet and a copy of the amended complaint filed April 23, 2009 (docket # 12).
4. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for the defendant listed in number 2 above; and
d. Two (2) copies of the endorsed amended complaint filed April 23, 2009 (docket # 12).
5. Plaintiff need not attempt service on defendants and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed ____________________:1 1 2 April 23, 2009 (docket # 12)
completed summons form completed USM-285 form copies of the Amended Complaint DATED: ____________________________________ Plaintiff