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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

TROY MAGARRELL,

Plaintiff, No. CIV S-04-2634 LKK DAD P

vs.

P. MANGIS, M.D., et al.,

Defendants. ORDER

 /

By order filed November 21, 2005, plaintiff’s newly substituted counsel was

granted fifteen days to file a notice concerning his intention to proceed on the original pro se

complaint or to file an amended pleading. No response was filed. In findings and

recommendations filed December 13, 2005, the undersigned recommended that defendants

Mangis and Sandham be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil

Procedure. No objections were filed.

On January 25, 2006, the court received from the plaintiff in propria persona a

letter in which plaintiff states that his attorney “is now M.I.A.,” that he had not heard from or

seen his attorney since July 26, 2005, and that on January 19, 2006, he had received, marked

“Return to Sender,” everything he had mailed to his attorney on November 29, 2005. The

plaintiff requested an extension of time to respond to the court’s November 21, 2005 order

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1

 Attorneys are encouraged to accept service of documents by electronic means. Local

Rule 5-135(g)(2). The court’s records do not reflect that plaintiff’s counsel in this case opted out

of service by electronic means.

2

concerning service of defendant Mangis. The district judge issued an order holding the pending

findings and recommendations in abeyance so that the plaintiff in propria persona could file a

motion to return to pro per status or retain other counsel. Within the time granted by the district

judge, the plaintiff in propria persona filed objections to the findings and recommendations filed

December 13, 2005, along with a request to return to pro per status. Also within the time granted

by the district judge, plaintiff’s counsel filed a declaration in which he claims that he received no

e-mail messages from the court prior to January 26, 2006, when he received a message from

defendant Rocha’s attorney and then examined the court’s docket for this case. Plaintiff in

propria persona subsequently filed a notice of withdrawal of his request to return to pro per

status.

Plaintiff’s counsel is referred to Local Rules 5-133 and 5-134. All attorneys who

wish to file documents in the Eastern District of California must be admitted to practice or

admitted to appear pro hac vice, and admission to practice in this district includes the

requirement that the attorney complete an e-filing registration form and receive a user name and

password.1 Local Rules 5-135(g) & 83-180(f). Each time a document is filed in this court, a

system-generated Notice of Electronic Filing (“NEF”) is sent to all attorneys of record who are

registered for electronic service. Local Rule 5-135(a) & (g). In this case, the court’s docket

reflects that an NEF was sent to MRavis@aol.com when plaintiff’s motion to substitute attorney

was filed on September 21, 2005, and that an NEF was sent to that same electronic address for

every document filed thereafter through January 30, 2006. It appears that counsel registered a

new electronic address on February 2, 2006, as the docket now shows his address as

Ravis90064@yahoo.com. For every document filed in this case beginning with the declaration

filed on February 2, 2006, an NEF has been sent to counsel at the yahoo.com address.

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3

The record reflects that all orders filed in this action were properly served on

plaintiff’s counsel by electronic means. Nevertheless, in the interests of justice, the undersigned

will vacate the pending findings and recommendations.

In his declaration filed on February 2, 2006, plaintiff’s counsel states that he

would like to file an amended complaint. On December 7, 2005, defendant Roche filed an

answer to the pro se complaint. The filing of a responsive pleading precludes the filing of an

amended complaint except by leave of court or by written consent of the adverse party. Fed. R.

Civ. P. 15(a). Plaintiff will be granted thirty days to file a motion for leave to amend, together

with a proposed amended complaint. Plaintiff’s motion must be noticed for hearing before the

undersigned on a regularly scheduled law and motion calendar, and the parties shall brief the

motion in accordance with Local Rule 78-230. 

Accordingly, IT IS HEREBY ORDERED that:

1. This court’s findings and recommendations filed December 13, 2005, are

vacated;

2. Plaintiff’s request for substitution filed February 13, 2006, is deemed

withdrawn by the notice filed February 17, 2006;

3. Plaintiff’s counsel is granted thirty days to file and serve a noticed motion for

leave to amend, accompanied by a proposed amended complaint; and

4. The Clerk is directed to serve a courtesy copy of this order on plaintiff Troy

Magarrell in propria persona at the address shown on the document he filed on February 17,

2006.

DATED: August 14, 2006.

DAD:13

maga2634.cu

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