Opinion
No. CIV S-06-2339 FCD DAD P.
February 22, 2008
ORDER
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights action seeking relief under 42 U.S.C. § 1983. On January 10, 2007, this action was stayed because plaintiff was actively pursuing a parallel state action against defendants. On July 2, 2007, plaintiff filed a request to lift the stay. On July 11, 2007, the court lifted the stay and ordered plaintiff to file an amended complaint. After granting plaintiff several extensions of time, on December 21, 2007, plaintiff filed his amended complaint.
Prior to filing his amended complaint, plaintiff filed another motion to stay the case until his state court proceedings concluded. Plaintiff explained that the Superior Court had only issued a tentative ruling and the judgment was not final when he requested that the court lift the original stay. In plaintiff's amended complaint, he informs the court that his state case concluded in June 2007, but claims he never received a final decision from the state court. Accordingly, plaintiff's motion to stay these proceedings will be denied as moot.
Plaintiff's amended complaint appears to state cognizable claims 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.
Accordingly, IT IS HEREBY ORDERED that:
1. Service of the amended complaint is appropriate for the following defendants: Alvaro Traquina, Daniel Thor, and John Kofoed.
2. 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 December 21, 2007.
3. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit all of the following documents to the court at the same time:
a. The completed, signed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for each defendant listed in number 1 above; and
d. Four copies of the endorsed amended complaint filed December 21, 2007.
4. Plaintiff shall not attempt to effect service of the amended complaint on defendants or request a waiver of service of summons from any defendant. 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.
5. Plaintiff's December 7, 2007 motion to stay the proceedings is denied as moot.