Opinion
No. CIV S-05-0954 GEB GGH P.
August 16, 2006
ORDER
Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. On May 8, 2006, the court ordered the United State Marshal to serve the amended complaint on defendants. On June 7, 2006, the service was returned unexecuted as to three of the eleven defendants: Dr. M Zhu, Sgt. Wilkerson and Capt. Garcia. On July 7, 2006, the court filed an order directing plaintiff to provide additional information for re-service of the three defendants. Although plaintiff has now filed the required papers, the court finds it unnecessary to direct the U.S. Marshal to serve the amended complaint upon these defendants because, on July 18, 2006, the defendants, including defendants Zhu, Wilkerson and Garcia, filed a motion to dismiss the amended complaint.
In addition, on July 7, 2006, defendants (including Zhu, Wilkerson and Garcia) filed a request for a 45-day extension of time to file a responsive pleading. Before the request was granted by Order, filed on July 21, 2006, defendants filed their motion to dismiss. Plaintiff, understandably confused by the sequence, has filed a request with respect to when his opposition to the motion to dismiss is due.
Accordingly, IT IS ORDERED that:
1. Defendants Zhu, Wilkerson and Garcia on whose behalf defendants' counsel has brought a motion to dismiss (as well as on behalf of the eight other defendants) have thereby waived their right to any further service of process, and have appeared in this action;
2. The July 21, 2006, Order granting defendants an extension of time until August 24, 2006, to file a responsive pleading, is VACATED, in light of defendants' motion to dismiss, filed on July 18, 2006, which motion is deemed timely;
3. Plaintiff's August 8, 2006, letter, concerning the deadline for his opposition to defendants' motion to dismiss is construed as a request for an extension of time to file the opposition, and plaintiff is granted thirty days from the date of this order to file his opposition.