Opinion
No. CV-09-00459-PHX-LOA.
April 27, 2009
ORDER
On April 20, 2009, the last day for pro se Plaintiff Charles Unbehauen to show cause why his Complaint should not be dismissed due to Plaintiff's failure to comply with a court order to either consent to a magistrate judge or elect to have the case reassigned to a district judge, Plaintiff filed a pleading entitled "Motion to Amend Complaint; Motion for timeliness; Motion for Magistrate; Reply to order 4.02.2009; Motion to dismiss with leave to refile." (docket # 7) This pleading is Plaintiff's response to the April 2, 2009 OSC. ( Id. at 4) ("Reply to order 4.02.2009") The Court will address all five parts of Plaintiff's pleading in sequential order as set forth in this pleading.
A. Motion to Amend Complaint
Plaintiff is seeking leave to amend his March 6, 2009 Complaint to add as defendants: Health Net of Arizona, Inc., an Arizona corporation, and the United States Department of Health and Human Services. Plaintiff did not attach a copy of his First Amended Complaint to his April 20, 2009 pleading. It further appears that he is also voluntarily dismissing his claims against current Defendants Secure Horizons/Pacificare/United Health Care. ( Id. at 4) ("Plaintiff does not argue the dismissal against the unknown entity Secure Horizons/Pacificare/United Health Care.")
Because Plaintiff is a pro se litigant now seeking relief against a governmental entity, officer, or employee, and is proceeding in forma pauperis, the Court must screen his First Amended Complaint. 28 U.S.C. § 1915A(a), (b)(1), (2); Reddogg v. Blackdog, 2008 WL 5435323, * 2 (D.Mont. 2008). The Court must dismiss a complaint or portion thereof where Plaintiff has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. Id. If Plaintiff's First Amended Complaint survives such screening, the Court will enter orders to assist Plaintiff in expediting service of the First Amended Complaint. Additionally, "[a] document filed pro se is 'to be liberally construed,' and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89 ___, 127 S.Ct. 2197, 2200, (2007); Cf. Fed. Rule Civ. Proc. 8(f) ("All pleadings shall be so construed as to do substantial justice").
The Court will grant Plaintiff's Motion to Amend Complaint and will order that Plaintiff promptly file his First Amended Complaint on or before Monday, May 11, 2009.
The Court notes that Rule 15(a)(1), FED.R.CIV.P., allows Plaintiff to amend his Complaint once as a matter of course without leave of the Court. Future amendments will require leave of the Court and compliance with LRCiv 15.1.
B. Motion for timeliness
C. Motion for Magistrate Judge[fn2]
28 U.S.C. § 636Kofoed v. Int'l Bhd. of Elec. Workers, Local 48,237 F.3d 10011004 May 11, 2009
The docket reflects Plaintiff was provided the consent form by the Clerk on March 6, 2009. (docket # 2)
Accordingly,
IT IS ORDERED that Plaintiff's Motion to Amend Complaint is GRANTED. Plaintiff shall file his Amended Complaint on or before Monday, May 11, 2009. IT IS FURTHER ORDERED that Defendants Secure Horizons/Pacificare/United Health Care are hereby dismissed from this litigation without prejudice.
IT IS FURTHER ORDERED that Plaintiff shall file his written election to either consent to magistrate-judge jurisdiction or elect to proceed before a United States district judge on or before Monday, May 11, 2009 or his case may be dismissed. (FOR USE IN CIVIL CASES WITH MAG JUDGE AS PRESIDER) UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
) ) Plaintiff(s) ) ) Case No.__________________________ vs. ) ) Defendant(s) ) )