(PC) Savage v. CDCR, et al., No. 2:2013cv00795 - Document 38 (E.D. Cal. 2014)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 6/19/14 ORDERING that service is appropriate for defendant Barnhart. The Clerk of the Court shall send plaintiff one USM-285 forms, one summons, an instruct ion sheet and a copy of the amended complaint. Motion for screening and extension of time 37 is granted. The pretrial and dispositive motion deadlines in the scheduling order are VACATED. RECOMMENDING that defendants Barnes and Andreasen be dismissed from this action. F&R referred to Judge John A. Mendez. Objections to F&R due within fourteen days. (Kaminski, H)

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(PC) Savage v. CDCR, et al. Doc. 38 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BOB SAVAGE, 12 13 14 15 No. 2:13-cv-0795 JAM CKD P Plaintiff, v. ORDER and FINDINGS & RECOMMENDATIONS CDCR, et al., Defendants. 16 17 18 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed 19 pursuant to 42 U.S.C. § 1983. Defendants have requested an order screening the First Amended 20 Complaint (“FAC”) pursuant to 28 U.S.C. § 1915(A(b). (ECF No. 37.) 21 The court previously granted plaintiff’s motion to amend, noting that the FAC is 22 substantially similar to the original complaint, but “corrects the name of one defendant (Barnhart 23 instead of Barnes)[.]” (ECF No. 36.) Service was executed on defendant Barnes, who answered 24 the original complaint. (ECF Nos. 18, 23.) In service documents for Barnes, plaintiff indicated 25 that there were several correctional officers named Barnes at California Medical Facility and he 26 intended to serve “the employee who was assigned as the 2nd Watch housing officer in H-3 on 27 June 28, 2011.” (ECF No. 18 at 4.) 28 1 Dockets.Justia.com The court construed the FAC as “correcting the name” of this defendant, also described in 1 2 the FAC as the H-3 housing officer working on June 28, 2011. However, defendants by their 3 request indicate that the “Barnes” who was served with the original complaint is not the 4 “Barnhart” named in the FAC, and that the latter has yet to be served. Accordingly, the court will 5 recommend that defendant Barnes be dismissed from this action.1 6 The court finds that the FAC states a cognizable claim under 42 U.S.C. § 1983 and 28 7 U.S.C. § 1915A(b) as to defendants DiTomas, Hinman-Seabrooks, Bick, and Aguilera (see ECF 8 Nos. 18, 26) and new defendant Barnhart. If the allegations of the amended complaint are 9 proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. 10 Additionally, defendants DiTomas, Hinman-Seabrooks, Bick, and Aguilera request an 11 extension of time to respond to the FAC and modification of the scheduling order. Good cause 12 appearing, the court will grant this request. 13 In accordance with the above, IT IS HEREBY ORDERED that: 14 1. Service is appropriate for the following additional defendant: Barnhart. 15 2. The Clerk of the Court shall send plaintiff one USM-285 forms, one summons, an 16 instruction sheet and a copy of the amended complaint filed May 15, 2014. 17 3. Within thirty days from the date of this order, plaintiff shall complete the attached 18 Notice of Submission of Documents and submit the following documents to the court: 19 a. The completed Notice of Submission of Documents; 20 b. One completed summons; 21 c. One completed USM-285 form for each defendant listed in number 1 above; 22 and 23 d. Two copies of the endorsed amended complaint filed May 15, 2014. 24 4. Plaintiff need not attempt service on defendant and need not request waiver of service. 25 Upon receipt of the above-described documents, the court will direct the United States Marshal to 26 27 28 1 Per defendants’ request, the court will also recommend that defendant Andreasen be formally dismissed from this action. This defendant has never been served, is not named in the FAC, and is apparently deceased (see ECF No. 35 at 1). 2 1 serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment 2 of costs. 3 5. Defendants’ motion for screening and extension of time (ECF No. 37) is granted. 4 6. Defendants DiTomas, Bick, Aguilera, and Hinman-Seabrooks shall have thirty days 5 6 7 8 9 from the date of this order to respond to the FAC. 7. The pretrial and dispositive motion deadlines in the scheduling order are VACATED. Future discovery and motion deadlines will be set as appropriate. IT IS HEREBY RECOMMENDED THAT defendants Barnes and Andreasen be dismissed from this action for the reasons set forth above. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are 15 advised that failure to file objections within the specified time may waive the right to appeal the 16 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: June 19, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 2 / sava0795.ord2 24 25 26 27 28 3 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA ) 9 BOB SAVAGE 10 11 ) Case No.: 2:13-CV-0795 JAM CKD P Plaintiff, vs. 12 CDCR, et al. 13 Defendant. _________________________________ ) ) ) ) ) ) ) ) 14 NOTICE OF SUBMISSION OF DOCUMENTS 15 16 17 18 19 20 21 22 23 Plaintiff hereby submits the following documents in compliance with the court's order filed ______________: ______ completed summons form ______ completed USM-285 forms ______ copies of the ___________________ 24 25 26 27 Complaint/Amended Complaint DATED: ___________________________________ Plaintiff 28 1

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