(PC)Shufelt v. Miranda et al, No. 2:2017cv01014 - Document 21 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/19/18 ORDERING plaintiff's motion for leave to amend is granted. Plaintiff's original complaint is dismissed. Service is appropriate for defendants Griffith and Miranda. The clerk of the court shall send plaintiff 2 USM-285 forms, 1 summons, instruction sheet and a copy of the amended complaint to be completed and returned within 30 days. The clerk of the court shall assign a district court ju dge to this case. Defendant Abdur-Rahman shall file a responsive pleading within 30 days. Also, RECOMMENDING that all defendants other than defendants Griffith, Miranda and Abdur-Rahman be dismissed; and all claims other than plaintiff's Eighth Amendment claims against defendants Griffith, Miranda and Abdur-Rahman be dismissed. Assigned and referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE W. SHUFELT, 12 Plaintiff, 13 14 No. 2:17-cv-1014 CKD P v. ORDER AND RAFAEL MIRANDA, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed 17 18 pursuant to 42 U.S.C. § 1983. On January 2, 2018, plaintiff filed an amended complaint. In the 19 spirit of Federal Rule of Civil Procedure 15(a)(1), which generally permits plaintiffs to amend a 20 complaint once as a matter of course in the early stages of the case, the court will grant plaintiff 21 leave to amend and screen plaintiff’s amended complaint as the court is required to do under 28 22 U.S.C. § 1915A(a). The court has conducted the required screening and finds that the amended complaint 23 24 states claims upon which plaintiff may proceed under the Eighth Amendment against defendants 25 Griffith, Miranda and Abdur-Rahman for denial or delay of medical treatment. 26 ///// 27 ///// 28 ///// 1 As for the other claims and defendants identified in plaintiff’s amended complaint, 1 2 plaintiff’s amended complaint fails to state claims upon which relief can be granted.1 3 In accordance with the above, IT IS HEREBY ORDERED that: 4 1. Plaintiff’s motion for leave to amend is granted. 5 2. Plaintiff’s original complaint is dismissed. 6 3. Service is appropriate for defendants Griffith and Miranda.2 7 4. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an 8 instruction sheet and a copy of the amended complaint. 9 5. Within thirty days from the date of this order, plaintiff shall complete the attached 10 Notice of Submission of Documents and submit the following documents to the court: 11 a. The completed Notice of Submission of Documents; 12 b. One completed summons; 13 c. One completed USM-285 form for each defendant listed in number 3 above; 14 and 15 d. Three copies of the endorsed amended complaint. 16 6. Plaintiff need not attempt service on any defendant and need not request waiver of 17 service. Upon receipt of the above-described documents, the court will direct the United States 18 Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 19 without payment of costs. 20 7. The Clerk of the Court assign a district court judge to this case. 21 8. Defendant Abdur-Rahman shall file a responsive pleading within 30 days. 22 ///// 23 ///// 24 1 25 26 27 28 With respect to claims asserted under California law, plaintiff has not adequately pled compliance with the terms of the California Tort Claims Act. See Cal. Gov’t Code § 910 et seq.; Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Complaints must present facts demonstrating compliance, rather than simply conclusions suggesting as much. Shirk v. Vista Unified School Dist., 42 Cal.4th 201, 209 (2007). 2 Defendant Abdur-Rahman appeared in this action on February 20, 2018. ECF No. 20. 2 1 IT IS HEREBY RECOMMENDED that: 2 1. All defendants other than defendants Griffith, Miranda and Abdur-Rahman be 3 dismissed; and 2. All claims other than plaintiff’s Eighth Amendment claims against defendants Griffith, 4 5 Miranda and Abdur-Rahman be dismissed. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen after 8 being served with these findings and recommendations, plaintiff may file written objections with 9 the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 10 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 11 waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 12 1991). 13 Dated: April 19, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 1 shuf1014.1 20 21 22 23 24 25 26 27 28 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE W. SHUFELT, 12 13 14 No. 2:17-cv-1014 CKD P Plaintiff, v. NOTICE OF SUBMISSION RAFAEL MIRANDA, et al., 15 OF DOCUMENTS Defendants. 16 17 18 Plaintiff hereby submits the following documents in compliance with the court's order filed _____________________ : 19 ____ completed summons form 20 ____ completed USM-285 forms 21 ____ copies of the ___________________ Amended Complaint 22 23 DATED: 24 25 26 27 ________________________________ 28 Plaintiff 4