1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

Timothy Jackson Seeley

Plaintiff, No. CIV S-04-1800 DFL CMK P

vs.

Teresa A. Schwartz, et al.,

Defendants.

 / ORDER

Plaintiff, Timothy Seeley, is a state prisoner proceeding pro se and informa

pauperis. He brings this action under 42 U.S.C. § 1983, alleging a violation of his Free Exercise

rights under the First and Fourteenth Amendments, a violation of his rights under the Religious

Land Use and Institutionalized Persons Act, 42 U.S.C. § 1997cc, and a violation of his rights

under the American Indian Religious Freedom Act, 42 U.S.C. § 1996. The following motions

are pending before the court: defendants’ motion to dismiss (doc. 38); plaintiff’s motion to file an

amended complaint or, in the alternative, to voluntarily dismiss the complaint (doc. 58); two

motions by plaintiff seeking an extension of time to “respond to the Attorney Generals [sic]

Motion(s)” (doc. 60, 62) and; defendants’ request to vacate the discovery cut-off date or to vacate

the entire scheduling order (doc. 65). 

Case 2:04-cv-01800-DFL-CMK Document 67 Filed 10/06/05 Page 1 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

In his August 15, 2005 motion seeking either to amend his complaint or be

granted a voluntary dismissal, plaintiff states that he needs to “specifically state each and every

claim upon which relief can be granted, which include new Native American Religious Rights

being violated...” and that he needs to attach exhibits to his complaint to “show the Court with

previous and new exhibit documents that plaintiff has in fact ‘Exhausted Administrative

Remedies.’” (Mot. to Amend, pg 2.) Plaintiff’s motion to amend was not accompanied by a

proposed amended complaint. As a litigant proceeding in forma pauperis, plaintiff’s pleadings

are subject to evaluation by this court pursuant to the in forma pauperis statute. See 28 U.S.C.

§ 1915. Since plaintiff did not submit a proposed amended complaint, the court is unable to

evaluate it. Plaintiff’s motion for leave to amend must therefore be denied. 

The court notes that plaintiff states in his August 15, 2005 motion to amend that

he did not attach evidence to his amended complaint filed March 10, 2005. He indicates that this

is due to the court’s denial of his February 10, 2005 motion to file an amended complaint due to

the complaint being vague and rambling and 143 pages long. Plaintiff is advised that, should he

file another motion to amend his complaint, he is free to file necessary exhibits with his

complaint. However, he is cautioned that any amended complaint must contain a short and

concise plea for relief, such that the court and defendants are readily able to ascertain plaintiff’s

claims and he is cautioned that any evidence attached must be relevant to the claims in his

complaint. 

As it is obvious from plaintiffs’s filing that he seeks to voluntarily dismiss his

complaint in order to immediately file a new complaint alleging the same violations against the

same defendants, it is not in the interest of judicial economy to grant a voluntary dismissal. 

Plaintiff’s request for voluntary dismissal is denied. 

///

///

///

Case 2:04-cv-01800-DFL-CMK Document 67 Filed 10/06/05 Page 2 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Plaintiff has also filed two motions for an extension of time to respond the

“Attorney Generals [sic] Motions.” The court assumes that the motion to which plaintiff is

referring is defendants’ June 10, 2005 motion to dismiss. However, the court notes that plaintiff

filed a “Response in Opposition to Defendant’s [sic] Motion to Dismiss CC-II Cry as a

Defendant” on August 22, 2005. Plaintiff is advised that the court will consider his August 22,

2005 response in opposition to defendants’ motion to dismiss. To the extent that plaintiff is

seeking to file a more detailed opposition to defendants’ motion, he is granted an extension of

time of thirty days from the date of service of this order to file such. 

Finally, the court considers defendants’ request to vacate the discovery cut-off

date and the scheduling order. Good cause appearing, the court vacates the Scheduling Order

issued on June 13, 2005. The court will issue a new scheduling order once it has ruled on the

defendants’ pending motion to dismiss. The court notes that the protective order staying

discovery pending the court’s ruling on defendants’ motion to dismiss (doc. 54) is still in effect. 

IT IS ORDERED THAT:

1. Plaintiff’s motion for leave to amend his complaint is denied (doc. 58);

2. Plaintiff’s request for voluntary dismissal is denied (doc 58);

3. Plaintiff’s requests for an extension of time are granted. (Docs. 60, 62.)

Plaintiff is granted thirty days form the date of service of this order to file a response to

defendants’ June 10, 2005 motion to dismiss and;

4. Defendants’ request to vacate the scheduling order is granted. (Doc. 65.) The

Scheduling Order issued on June 13, 2005 is vacated. The court will issue a new scheduling

order once it has ruled on defendants’ motion to dismiss this action as to defendant Cry. 

DATED: October 5, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

Case 2:04-cv-01800-DFL-CMK Document 67 Filed 10/06/05 Page 3 of 3