-GGH (PC) Mitchell v. Cate et al, No. 2:2011cv01240 - Document 13 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 10/17/11 ORDERING service is apporpriat for defendants McDonald, Gower, Davey, Van Leer, Sanders, Miranda and Clark. The clerk of the court shall send plaintiff 7 USM-285 forms, instruction sheet and a copy of the 05/09/11 complaint to be completed and returned within 30 days. Also, RECOMMENDING that for the reasons set forth in the order filed on 09/14/11 9 that defendants Cate, Kernan, Chapman, Harkness and Dangler be dismissed from this action. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

Download PDF
-GGH (PC) Mitchell v. Cate 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 WESLEY MITCHELL, 11 Plaintiff, 12 13 14 vs. MATTHEW L. CATE, et al., ORDER & Defendants. 15 16 No. CIV-S-11-1240 JAM GGH P FINDINGS AND RECOMMENDATIONS / Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action 17 filed pursuant to 42 U.S.C. § 1983. By order filed September 14, 2011, several defendants in 18 plaintiff's complaint were dismissed with leave to file an amended complaint. Evidently electing 19 not to file an amended complaint, plaintiff, by filing dated September 21, 2011, has informed the 20 court that he elects to proceed only as to the defendants within the original complaint against 21 whom it was determined that colorable claims had been framed. 22 The complaint states a cognizable claim for relief pursuant to 42 U.S.C. § 1983 23 and 28 U.S.C. § 1915A(b) as to certain defendants. If the allegations of the complaint as to these 24 defendants are proven, plaintiff has a reasonable opportunity to prevail on the merits of this 25 action. The court will also herein recommend dismissal of the defendants previously dismissed 26 with leave to amend. 1 Dockets.Justia.com 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Service is appropriate for the following defendants: McDonald, Gower, 3 Davey, Van Leer, Sanders, Miranda and Clark. 4 5 2. The Clerk of the Court shall send plaintiff seven (7) USM-285 forms, one summons, an instruction sheet and a copy of the complaint filed May 9, 2011. 6 7 3. 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: 8 a. The completed Notice of Submission of Documents; 9 b. One completed summons; 10 c. One completed USM-285 form for each defendant listed in number 1 11 above; and 12 d. Eight (8) copies of the endorsed complaint filed May 9, 2011. 13 4. Plaintiff need not attempt service on defendants and need not request waiver of 14 service. Upon receipt of the above-described documents, the court will direct the United States 15 Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 16 without payment of costs. 17 IT IS RECOMMENDED for the reasons set forth in the Order, filed on September 18 14, 2011 (docket # 9), that defendants Cate, Kernan, Chapman, Harkness and Dangler be 19 dismissed from this action. 20 These findings and recommendations are submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 22 days after being served with these findings and recommendations, plaintiff may file written 23 objections with the court. Such a document should be captioned “Objections to Magistrate 24 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 25 \\\\ 26 \\\\ 2 1 within the specified time may waive the right to appeal the District Court's order. Martinez v. 2 Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: October 17, 2011 4 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 5 6 GGH:009 mitc1240.1+ 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 WESLEY MITCHELL, 11 Plaintiff, 12 13 No. CIV-S-11-1240 GGH P vs. MATTHEW L. CATE, et al., 14 NOTICE OF SUBMISSION Defendants. OF DOCUMENTS 15 / 16 17 Plaintiff hereby submits the following documents in compliance with the court's order filed : 18 1 completed summons form 19 7 completed USM-285 forms 20 8 copies of the May 9, 2011 Complaint 21 DATED: 22 23 Plaintiff 24 25 26

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.