Opinion
2:21-cv-1789 TLN KJN P
02-06-2023
MONRELL D. MURPHY, Plaintiff, v. C. PIERCE, et al., Defendants.
ORDER
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff is a state prisoner, proceeding pro se, with a civil rights action seeking relief under 42 U.S.C. § 1983. On December 15, 2022, the motion to dismiss filed by defendants Lebeck and Pierce was denied.
As noted in the prior findings and recommendations (ECF No. 31), although the complaint contains allegations against a “defendant Ortega,” (ECF No. 1 at ¶¶11, 12), plaintiff failed to name Ortega as a defendant in the caption or identify defendant Ortega in the defendants' section of his pleading as required under Rule 10(a) of the Federal Rules of Civil Procedure. Because Ortega was not properly named as a defendant, service of process was not ordered on Ortega. Plaintiff did not address this in his objections. However, because plaintiff has not had an opportunity to amend his pleading to remedy such defect, plaintiff is granted thirty days to file an amended complaint to properly name Ortega as a defendant. In the alternative, plaintiff may elect to proceed as to the remaining defendants identified in the court's screening order. (ECF No. 5.)
Such election will be construed as plaintiff's consent to the dismissal of the putative claims against Ortega.
In light of the above, defendants Lebeck and Pierce are relieved of their obligation to file a responsive pleading until further order of court.
Plaintiff provided additional information for service of process on defendant J. Lopez. Once plaintiff makes his election, the court will order service of process on defendant Lopez.
Accordingly, IT IS HEREBY ORDERED that:
1. Within thirty days from the date of this order, plaintiff shall make the following election: (1) file an amended complaint that names Ortega in the caption, identifies Ortega as a defendant in the defendants' section of the amended complaint, and includes the charging allegations against Ortega; or (2) choose to proceed as to the remaining defendants identified in the court's screening order (ECF No. 5).
2. Defendants Lebeck and Pierce are relieved of their obligation to file a responsive pleading until further order of court.
NOTICE OF ELECTION
Plaintiff elects to proceed as follows:
____ Plaintiff opts to amend his complaint and provides an amended complaint that names Ortega in the caption, identifies Ortega as a defendant in the defendants' section of the amended complaint, and includes the charging allegations against Ortega.
OR
____ Plaintiff chooses to proceed as to his claims against defendants Pierce, Lebeck and Lopez and consents to dismissal of his putative claims against Ortega without prejudice.
DATED:
______Plaintiff