(PC)Coleman v. Cate et al, No. 2:2012cv01496 - Document 15 (E.D. Cal. 2012)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/26/12 ORDERING the clerk's office is directed to assign a District Judge to this action. U.S. District Judge William B. Shubb randomly assigned to this a ction. Service is appropriate for defendants Oliver and Perez. The clerk of the court shall send plaintiff 2 USM-285 forms, 1 summons, instruction sheet and a copy of the 09/04/12 amended complaint to be completed and returned within 30 days. Also, RECOMMENDING that the following defendants are dismissed from this action with prejudice: Matthew Cate and Rob Barnes. Referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)

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(PC)Coleman v. Cate et al Doc. 15 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ANTHONY COLEMAN, Plaintiff, 11 12 No. 2:12-cv-1496 CKD P vs. 13 MATTHEW CATE, et al., 14 Defendants. ORDER & FINDINGS AND RECOMMENDATIONS 15 / 16 17 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, who seeks 18 relief pursuant to 42 U.S.C. § 1983. On August 10, 2012, plaintiff’s complaint was found to 19 state an Eighth Amendment claim against defendant Oliver. To give plaintiff a chance to cure 20 the defects of the complaint against the remaining three defendants, the court dismissed the 21 complaint with leave to amend. 22 On September 4, 2012, plaintiff filed an amended complaint. (Dkt. No. 11.) The 23 court concludes that for screening purposes, plaintiff states an Eighth Amendment claim as to 24 defendants Oliver and Perez. If these allegations of the complaint are proven, plaintiff has a 25 reasonable opportunity to prevail on the merits of this action. Plaintiff does not state a claim as 26 to defendants Cate and Barnes for the reasons set forth in the August 10, 2012 screening order. 1 Dockets.Justia.com 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. The Clerk’s office is directed to assign a district judge to this case; 3 2. Service is appropriate for the following defendants: Oliver and Perez. 4 3. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, 5 an instruction sheet and a copy of the amended complaint filed September 4, 2012. 4. Within thirty days from the date of this order, plaintiff shall complete the 6 7 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. Two copies of the endorsed amended complaint filed September 4, 13 2012. 5. Plaintiff need not attempt service on defendant and need not request waiver of 14 15 service. Upon receipt of the above-described documents, the court will direct the United States 16 Marshal to serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 17 without payment of costs. IT IS HEREBY RECOMMENDED THAT the following defendants are 18 19 dismissed from this action with prejudice: Matthew Cate and Ron Barnes. These findings and recommendations are submitted to the United States District 20 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, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 25 shall be served and filed within fourteen days after service of the objections. The parties are 26 \\\\\ 2 1 advised that failure to file objections within the specified time may waive the right to appeal the 2 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: November 26, 2012 4 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 cole1496.1.new 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ANTHONY COLEMAN, Plaintiff, 11 12 No. 2:12-cv-1496 CKD P vs. 13 MATTHEW CATE, et al., 14 Defendants. 15 OF DOCUMENTS ____________________________________/ Plaintiff hereby submits the following documents in compliance with the court's 16 17 NOTICE OF SUBMISSION order filed : 18 completed summons form 19 completed USM-285 forms 20 copies of the Complaint/Amended Complaint 21 DATED: 22 23 Plaintiff 24 25 26

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