Opinion
No. CIV S-07-2164 FCD KJM P.
May 9, 2008
ORDER
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed May 5, 2008, the court directed the U.S. Marshal to serve plaintiff's complaint on defendant Schwarzenegger. Plaintiff has now filed a motion to file an amended complaint and the proposed amended complaint. However, because no responsive pleading has been filed, plaintiff may file an amended complaint as a matter of right. Fed.R.Civ.P. 15(a).
The amended complaint states a cognizable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). 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 motion to amend the complaint (docket no. 16) is denied as unnecessary.
2 Service is appropriate for the following defendants: Schwarzenegger, Orson, and the Director of Corrections.
3. The Clerk of the Court shall send plaintiff three USM-285 forms, one summons, an instruction sheet and a copy of the amended complaint filed May 5, 2008.
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 each defendant listed in number 2 above; and
d. Four copies of the endorsed amended complaint filed May 5, 2008.
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.
6. The order for service issued May 5, 2008 (docket no. 14) is hereby vacated and the Marshal may cease all attempts to serve defendant Schwarzenegger with the summons and complaint filed October 12, 2007.
7. The Clerk of the Court is directed to serve a copy of this order on the U.S. Marshal.