MacConnell v. NaphCare Inc et al, No. 3:2013cv00034 - Document 16 (S.D. Ohio 2013)

Court Description: DECISION AND ENTRY - IT IS THEREFORE ORDERED THAT: 1. Plaintiff's Proposed Amended Complaint (Doc. 9 ) is accepted as filed and constitutes his First Amended Complaint. 2. On or before May 6, 2013, Plaintiff may file if he so desires a Mo tion to Amend his Complaint along with a Proposed Second Amended Complaint. 3. The Clerk of Court shall provide Plaintiff with the forms necessary to effect service of summons and service of Plaintiff's First Amended Complaint (Doc. 9 ). In o rder to accomplish service, Plaintiff must complete and return the forms to the Clerk's Office. 4. Because Plaintiff is proceeding in forma pauperis, the United States Marshal is directed to serve summons and a copy of the First Amended Compla int (Doc. 9 ), and a copy of this Order upon the named Defendants based upon the information Plaintiff provides in the forms he completes. All costs of service shall be advanced by the United States. Signed by Chief Magistrate Judge Sharon L Ovington on 4/11/13. (kje1)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON RION T. MACCONNELL, : Plaintiff, : : vs. SHERIFF PHIL PLUMMER, et al., Defendants. Case No. 3:13cv00034 District Judge Timothy S. Black Chief Magistrate Judge Sharon L. Ovington : : DECISION AND ENTRY This matter is before the Court upon Plaintiff s Proposed Amended Complaint (Doc. #9), his Notice of Substitution for John Does to the Court and All Parties (Doc. #13), and the record as a whole. Service of summons and Plaintiff s Complaint has not yet occurred on the named Defendants. Plaintiff may therefore amend his Complaint once as a matter of course .... Fed. R. Civ. P. 15(a)(1). His Proposed Amended Complaint is therefore accepted as filed and is considered his First Amended Complaint. (Doc. #9). Plaintiff s Notice of Substitution seeks to substitute Montgomery County, Ohio in place of a John Doe Defendant. Substituting a named defendant for a John Doe defendant is considered a change in parties, not a mere substitution of parties. Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996). Plaintiff must therefore file a Motion to Amend his Complaint under Fed. R. Civ. P. 15, see Cox, 75 F.3d at 240, along with a copy of his Proposed Second Amended Complaint. Without such a Motion and a Proposed Second Amended Complaint, Plaintiff s Notice of Substitution (Doc. #13) fails to accomplish the substitution he seeks. IT IS THEREFORE ORDERED THAT: 1. Plaintiff s Proposed Amended Complaint (Doc. #9) is accepted as filed and constitutes his First Amended Complaint; 2. On or before May 6, 2013, Plaintiff may file if he so desires a Motion to Amend his Complaint along with a Proposed Second Amended Complaint; 3. The Clerk of Court shall provide Plaintiff with the forms necessary to effect service of summons and service of Plaintiff s First Amended Complaint (Doc. #9). In order to accomplish service, Plaintiff must complete and return the forms to the Clerk s Office; and 4. Because Plaintiff is proceeding in forma pauperis, the United States Marshal is directed to serve summons and a copy of the First Amended Complaint (Doc. #9), and a copy of this Order upon the named Defendants based upon the information Plaintiff provides in the forms he completes. All costs of service shall be advanced by the United States. April 11, 2013 s/Sharon L. Ovington Sharon L. Ovington Chief United States Magistrate Judge 2

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