Opinion
No. CIV S-05-1595 DFL GGH P.
August 23, 2006
ORDER
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the amended complaint filed September 28, 2005, as to defendants Stephens, Alcorn and Van Lear. On February 14, 2006, defendants filed a motion to dismiss or for more definite statement pursuant to Fed.R.Civ.P. 12(b)(6) and (e).
On July 24, 2006, plaintiff filed an opposition to defendants' motion. Plaintiff's opposition is prepared on a complaint form and is labeled "amended complaint." The court construes plaintiff's opposition as a second amended complaint. After reviewing this document, the court finds that it cures several of the pleading defects alleged in defendants' motion to dismiss. Accordingly, the motion to dismiss is vacated and defendants are ordered to respond to the second amended complaint.
Also named as a defendant in the second amended complaint is Mr. Demers. The second amended complaint states a colorable claim against this defendant.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendants' February 14, 2006, motion to dismiss is vacated;
2. Plaintiff's July 24, 2006, opposition is construed as a second amended complaint;
3. Defendants shall file a response to the second amended complaint within thirty days of the date of this order;
4. Service is appropriate for the following defendants: Mr. Demers.
5. The Clerk of the Court shall send plaintiff 1 USM-285 forms, one summons, an instruction sheet and a copy of the second amended complaint filed July 24, 2006;
6. 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 3 above; and
d. Two copies of the endorsed second amended complaint filed July 24, 2006.
7. Plaintiff need not attempt service on defendant 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.
Plaintiff hereby submits the following documents in compliance with the court's order filed ___:
1 completed summons form
1 completed USM-285 forms
2 copies of the __________ Complaint/Amended Complaint DATED:
______________________________ Plaintiff