(PC) Giraldes v. California Department of Corrections and Rehabilitation et al., No. 2:2016cv02139 - Document 12 (E.D. Cal. 2018)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 2/09/18 ORDERING the Clerk of the Court is directed to randomly assign a District Judge. Plaintiff has stated a cognizable claim for retaliation in violation of the First Amendment. Service is appropriate for defendants Moreland, Sturgess, Maciel, Hernandez and Robinson. The clerk of the court shall send plaintiff 5 USM-285 forms, 1 summons, instruction sheet and a copy of the amended complaint 5 to be compl eted and returned with the Notice of Submission of Documents within 30 days. Also, RECOMMENDING that plaintiff's Eighth Amendment claim and defendants Kernan and CDCR be dismissed for the reasons stated in the court's 9/27/17 order 6 . Assigned and referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)
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(PC) Giraldes v. California Department of Corrections and Rehabilitation et al. Doc. 12 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 LARRY GIRALDES, JR., 11 12 13 14 No. 2:16-cv-2139 DB P Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 action under 42 U.S.C. § 1983. Plaintiff consented to magistrate judge jurisdiction. (ECF No. 4.) 19 Presently before the court is plaintiff’s request for service of the first amended complaint. (ECF 20 No. 11.) 21 On September 27, 2017, plaintiff’s first amended complaint (ECF No. 5) was screened 22 and found to state a claim for retaliation in violation of the First Amendment against defendants 23 Moreland, Sturgess, Maciel, Hernandez, and Robinson. (ECF No. 6.) The court also found 24 plaintiff failed to state a claim for deliberate indifference in violation of the Eighth Amendment 25 against defendants Sturgess, Kernan, and the California Department of Corrections and 26 Rehabilitation (“CDCR”). (Id.) The court gave plaintiff an opportunity to amend his complaint. 27 28 Plaintiff moved for and was granted an extension of time in which to file an amended complaint. (ECF Nos. 9, 10.) However, plaintiff has now requested that the court order service 1 Dockets.Justia.com 1 of the defendants named in his First Amendment claim. (ECF No. 11.) The court construes this 2 filing as a notice of plaintiff’s willingness to proceed on the complaint as screened. Based on 3 plaintiff’s willingness to proceed on the complaint as screened, the court will recommend1 4 dismissal of plaintiff’s Eighth Amendment claim and defendants Kernan and the CDCR for the 5 reasons stated in the court’s September 27, 2017 screening order (ECF No. 6). 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The Clerk of Court is directed to randomly assign a district judge. 8 2. Plaintiff has stated a cognizable claim for retaliation in violation of the First 9 Amendment. Service is appropriate for the following defendants: Moreland, Sturgess, Maciel, 10 Hernandez, and Robinson. 11 3. The Clerk of the Court shall send plaintiff 5 USM-285 forms, one summons, an 12 instruction sheet, and a copy of the amended complaint filed October 3, 2016 (ECF No. 5). 13 4. Within thirty days from the date of this order, plaintiff shall complete the attached 14 Notice of Submission of Documents and submit the following documents to the court: 15 a. The completed Notice of Submission of Documents; 16 b. One completed summons; 17 c. One completed USM-285 form for each defendant listed in number 2 above; 18 and 19 d. Six copies of the endorsed amended complaint filed October 3, 2016. 20 5. Plaintiff need not attempt service on defendants and need not request waiver of service. 21 Upon receipt of the above-described documents, the court will direct the United States Marshal to 22 serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment 23 of costs. 24 //// 25 //// 26 1 27 28 In light of Williams v. King, 875 F.3d 500 (9th Cir. 2017) (holding a Magistrate Judge does not have jurisdiction to dismiss a case with prejudice during screening even if the plaintiff has consented to Magistrate Judge jurisdiction), the court will direct the clerk to assign a district judge. 2 1 IT IS HEREBY RECOMMENDED that plaintiff’s Eighth Amendment claim and 2 defendants Kernan and the CDCR be dismissed for the reasons stated in the court’s September 3 27, 2017 order (ECF No. 6). 4 These findings and recommendations will be submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 6 after being served with these findings and recommendations, plaintiff may file written objections 7 with the court. The document should be captioned “Objections to Magistrate Judge's Findings 8 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 9 time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 10 F.2d 1153 (9th Cir. 1991). 11 Dated: February 9, 2018 12 13 14 15 16 DLB12 DLB1/Orders/Prisoner.Civil Rights/gira1264.req.serv 17 18 19 20 21 22 23 24 25 26 27 28 3
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