Opinion
No. C 11-1896 LHK (PR)
10-27-2011
CURTIS LEE MORRISON, Plaintiff, v. ELANA O'REILLY, Defendant.
ORDER DIRECTING
PLAINTIFF TO AMEND
COMPLAINT
Plaintiff, a California state prisoner, currently housed at California State Prison - Solano, and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. In his complaint, Plaintiff claims he sought access to DNA evidence but has been denied, in violation of his right to due process. On July 5, 2011, the Court ordered service of the complaint upon Deputy District Attorney Elana O'Reilly. On September 2, 2011, the summons was returned unexecuted because she has not worked at the District Attorney's Office "for some time."
The failure to name the proper defendant in the caption of a complaint does not require dismissal of the complaint where the allegations in the body of the complaint make it plain that the party is intended as a defendant. See Barsten v. Dep't of the Interior, 896 F.2d 422, 423-24 (9th Cir. 1990). Thus, Plaintiff is directed to amend his complaint to name, at the very least, the District Attorney of Contra Costa County. See, e.g., Skinner v. Switzer, 131 S. Ct. 1289 (2011); District Attorney's Office For The Third Jud. Dist. v. Osborne, 129 S. Ct. 2308 (2009).
Within thirty (30) days of the filing date of this order, Plaintiff shall file his amended complaint naming the intended defendant. Failure to file an amended complaint within thirty days and in accordance with this order may result in a dismissal of this action.
It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court and all parties informed of any change of address and must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
LUCY H. KOH
United States District Judge