(PC) Cohea v. Adcock et al, No. 2:2009cv00998 - Document 13 (E.D. Cal. 2009)
Court Description: ORDER signed by Magistrate Judge Kimberly J. Mueller on 11/24/09 ORDERING that the 11 findings and recommendations are hereby VACATED; DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms. Service is appropriate for Adcock, Sims, Schi evelbein, Hill, Rosario, Scogin, Flory, Kelly, Goghnour, Sanders, Stockton, Padovan, Scarsella, Bunnell and Rianda. Clerk to send plaintiff: 1 Summons, 16 USM-285 Forms, and 1 copy of the Complaint filed on 4/13/09. Within 30 days, plaintiff shall complete the Notice of Submission of Documents and submit the appropriate documents to the court.(Dillon, M)
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(PC) Cohea v. Adcock et al Doc. 13 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DANNY JAMES COHEA, Plaintiff, 12 13 14 15 No. CIV S-09-998 JAM KJM P Defendant. 11 ORDER vs. S. ADCOCK, / 16 Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 17 42 U.S.C. § 1983. Plaintiff alleges that the defendants took a number of actions against him, all 18 in retaliation for his grievances and complaints about conditions in CSP-Folsom’s B-Facility. 19 Specifically, he alleges that: (1) on January 24, 2001, defendant Adcock filed a false rules 20 violation report against him; this report was endorsed by defendants Sims, Schievelbein and Hill 21 around the same date; (2) on January 29, 2001, defendant Adcock filed another false incident 22 report, which was endorsed by defendants Rosario, Schievelbein, Hill and Sims; on January 24, 23 2001, defendants Sims, Schievelbein and Hill refused to pack plaintiff’s legal property and broke 24 plaintiff’s color television; (3) on January 31, 2001, defendants Schievelbein, Goghnour and 25 Sanders relied on defendant Adcock’s falsified reports in removing plaintiff from B-Facility, 26 from his work group and Level III status; (4) on or about February 22 and March 1, 2001, 1 Dockets.Justia.com 1 defendants Stockton and Padovan violated plaintiff’s rights to present exculpatory evidence and 2 to a fair hearing on the falsified rules violation report, and (5) between May 13, 2001 and 3 January 22, 2002, defendants Scarsella, Bunnell and Rianda denied plaintiff’s grievances 4 stemming from Adcock’s false reports. Plaintiff further alleges that his administrative 5 grievances were exhausted on January 22, 2002. 6 This court found that all of the above claims were barred by the statute of 7 limitations, which, it calculated, expired in January 2006. Docket No. 11. Plaintiff has now 8 filed objections, noting that his allegations against several of the defendants were included in 9 amended complaints in Cohea v. Pliler, Civ. No. S-00-2799 FCD EFB, which were dismissed 10 because the claims had not been exhausted before the initial action (as opposed to the amended 11 complaints raising them) was filed. Civ. No. S-00-2799, Docket No. 11 (allegations against 12 Scogin, Flory, Kelly and Adcock); Docket No. 174 (Flory, Hill, Kelly, Saunders, Scogin, Sims 13 and White). 14 Without necessarily finding that plaintiff has satisfied the statute of limitations, 15 the court will vacate its earlier findings and recommendations and order the complaint served as 16 to the retaliation claims identified in the first paragraph above. 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. The findings and recommendations filed March 13, 2009 (docket no. 11) are 19 20 hereby vacated. 2. Service of the retaliation claims is appropriate for the following defendants: 21 Adcock, Sims, Schievelbein, Hill, Rosario, Sims, Scogin, Flory, Kelly, Goghnour, Sanders, 22 Stockton, Padovan, Scarsella, Bunnell and Rianda. 23 24 25 26 3. The Clerk of the Court shall send plaintiff sixteen USM-285 forms, one summons, an instruction sheet and a copy of the complaint filed April 13, 2009. 4. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court: 2 1 a. The completed Notice of Submission of Documents; 2 b. One completed summons; 3 c. One completed USM-285 form for each defendant listed in number 2 4 above; and 5 d. Seventeen copies of the endorsed complaint filed April 13, 2009. 6 5. Plaintiff need not attempt service on defendants and need not request waiver of 7 service. Upon receipt of the above-described documents, the court will direct the United States 8 Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 9 without payment of costs. 10 DATED: November 24, 2009. 11 12 13 2 14 cohe0998.vf&r 15 16 17 18 19 20 21 22 23 24 25 26 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 DANNY JAMES COHEA, 8 9 10 Plaintiff, vs. S. ADCOCK, 11 12 NOTICE OF SUBMISSION Defendants. OF DOCUMENTS ____________________________________/ 13 14 No. CIV S-09-998 JAM KJM P Plaintiff hereby submits the following documents in compliance with the court's order filed : 15 completed summons form 16 completed USM-285 forms 17 copies of the Complaint/Amended Complaint 18 DATED: 19 20 Plaintiff 21 22 23 24 25 26
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