(TEMP)(PC) Davenport v. Korik, et al, No. 2:2014cv00325 - Document 19 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS and ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/26/16 DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms within 30 days. Service is appropriate for Korik. Clerk to send plaintiff: 1 Summons, 1 USM-285 Form, and 1 copy of the Amended Complaint filed on 6/19/15. Plaintiffs motion for the appointment of counsel (ECF No. 18 ) is DENIED. IT IS RECOMMENDED that defendant Virga be dismissed from this action. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES BOBBY DAVENPORT, III, 12 13 14 15 No. 2:14-cv-0325 TLN CKD P (TEMP) Plaintiff, v. ORDER AND RABBI KORIK, et al. FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed 18 pursuant to 42 U.S.C. § 1983. By order filed May 26, 2015, plaintiff was given the options of 19 proceeding on his original complaint or filing an amended complaint. Plaintiff timely filed an 20 amended complaint (ECF No. 14). 21 The amended complaint states a cognizable claim under 42 U.S.C. § 1983 and 28 U.S.C. § 22 1915A(b). However, the amended complaint states a claim only as to defendant Korik. Plaintiff 23 has not stated a claim against Warden Virga, whom the plaintiff implicates on the basis of Virga’s 24 alleged denial of plaintiff’s inmate appeal. “[I]nmates lack a separate constitutional entitlement to 25 a specific grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.2003). 26 “Therefore, plaintiff cannot state a cognizable civil rights claim against defendants ... based solely 27 on their roles in denying a prison grievance.” Johnson v. Hill, No. 2:10-cv-2522 KJN P, 2010 28 WL 4386722 at *2 (E.D. Cal. October 28, 2010). If the allegations against defendant Korik are 1 1 proved, though, plaintiff has a reasonable opportunity to prevail on the merits of his claim that 2 Korik violated his First Amendment right to practice his religion. 3 Plaintiff has requested the appointment of counsel. The United States Supreme Court has 4 ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 5 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional 6 circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 7 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 8 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find the required 9 exceptional circumstances. Plaintiff’s request for the appointment of counsel will therefore be 10 denied. 11 In accordance with the above, IT IS HEREBY ORDERED that: 12 1. Service is appropriate for defendant Korik. 13 2. The Clerk of the Court shall send plaintiff one USM-285 forms, one summons, an 14 instruction sheet and a copy of the amended complaint filed June 19, 2015. 15 3. Within thirty days from the date of this order, plaintiff shall complete the attached 16 Notice of Submission of Documents and submit the following documents to the court: 17 a. The completed Notice of Submission of Documents; 18 b. One completed summons; 19 c. One completed USM-285 form for each defendant listed in number 1 above; 20 and 21 d. Two copies of the endorsed amended complaint filed June 19, 2015. 22 4. Plaintiff need not attempt service on defendants and need not request waiver of service. 23 Upon receipt of the above-described documents, the court will direct the United States Marshal to 24 serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment 25 of costs. 5. Plaintiff’s motion for the appointment of counsel (ECF No. 18) is denied. 26 27 //// 28 //// 2 1 IT IS RECOMMENDED that defendant Virga be dismissed from this action. 2 These findings and recommendations are submitted to the United States District Judge 3 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 4 after being served with these findings and recommendations, any party may file written 5 objections with the court and serve a copy on all parties. Such a document should be captioned 6 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 7 objections shall be served and filed within fourteen days after service of the objections. The 8 parties are advised that failure to file objections within the specified time may waive the right to 9 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 Dated: January 26, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 hm dave0325.1amd.new 18 19 20 21 22 23 24 25 26 27 28 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 No. 12 13 Plaintiff, v. NOTICE OF SUBMISSION OF DOCUMENTS 14 15 Defendant. 16 17 18 Plaintiff hereby submits the following documents in compliance with the court's order filed _____________________ : 19 ____ completed summons form 20 ____ completed USM-285 forms 21 ____ copies of the ___________________ Complaint 22 23 DATED: 24 25 26 27 ________________________________ 28 Plaintiff 4

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