(PC) McElroy v. Vazquez

1:07-cv-01747 | E.D. Cal. | Jun 6, 2008

Case 1:07-cv-01747-SMS Document 17 Filed 06/06/08 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA LATWAHN McELROY, 1:07-cv-01747-LJO-SMS-PC Plaintiff, ORDER DENYING MOTIONS (Doc. 14, 15.) v. SECOND ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY WITH EXCESSIVE FORCE CLAIM AGAINST DEFENDANTS DOE 3 AND DOE 4 VASQUEZ, et al., Defendants. THIRTY DAY DEADLINE / Plaintiff Latwahn McElroy (“plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On April 16, 2008, the court issued an order requiring plaintiff to either file an amended complaint or notify the court of his willingness to proceed only with his excessive force claim against defendants Doe 3 and Doe 4. (Doc. 12.) On May 27, 2008, plaintiff filed two motions in which he notified the court of his willingness to proceed with the excessive force claim against defendants Doe 3 and Doe 4, and requested leave to litigate the remaining claims later in an amended complaint or a new action, using court records. (Doc. 15.)

Plaintiff's motions shall be denied, and he shall be granted another opportunity to comply with the court's order of April 16, 2008. The court's order required him to make a choice between two options: (1) file an amended complaint curing the deficiencies identified by the court in its order of April 16, 2008; or (2) proceed only on the Eighth Amendment excessive force claim against defendants Doe 3 and Doe 4. If plaintiff decides to proceed only on the

1 Case 1:07-cv-01747-SMS Document 17 Filed 06/06/08 Page 2 of 2 excessive force claim against defendants Doe 3 and Doe 4, the court shall issue findings and recommendations to dismiss all remaining claims and defendants from this action for failure to state a claim.

Plaintiff is not foreclosed from requesting leave to amend the complaint at a later stage of this action. However, plaintiff’s motions for the court to grant him leave now , to amend or bring a new action at an undisclosed time in the future , are premature and shall be denied.
Plaintiff states that he is unable to amend the complaint at this time due to his medical condition and lack of access to legal materials and research supplies. Plaintiff is advised that he may file a motion for extension of time with the court if he requires additional time to prepare the amended complaint.
Based on the foregoing, it is HEREBY ORDERED that: 1. Plaintiff's motions of May 27, 2008 are DENIED; 2. Plaintiff is granted another opportunity to comply with the court's order of April
16, 2008; 3. The Clerk’s Office shall send plaintiff another § 1983 civil rights complaint form; 4. Within thirty (30) days from the date of service of this order, plaintiff must
either: a. File an amended complaint curing the deficiencies identified by the court
in its order of April 16, 2008; or b. Notify the court in writing that he does not wish to file an amended complaint and wishes to proceed only against Doe 3 and Doe 4 (Officers) on his Eighth Amendment excessive force claim;
5. Plaintiff's failure to comply with this order shall result in a recommendation that this action be dismissed.

IT IS SO ORDERED.

Dated: June 6, 2008 icido3 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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