(PC) Diaz v. Dixon et al, No. 2:2017cv01240 - Document 9 (E.D. Cal. 2017)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/26/2017 ORDERING Clerk to assign a district judge to this case; DIRECTING Plaintiff to submit service documents and USM-285 forms; and RECOMMENDING all defend ants other than Dixon and Ferris be dismissed. Service is appropriate for N. Dixon and T. Farris. Clerk to send plaintiff: 1 Summons, 2 USM-285 Forms with instruction sheet, and 1 copy of the Complaint filed on 6/15/2017. Plaintiff to comple te and submit Notice of Submission of Documents with service documents within 30 days from the date of this order. Assigned and referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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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 ROY DIAZ, 12 No. 2:17-cv-1240 CKD P Plaintiff, 13 v. 14 N. DIXON, et al., 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a state prisoner proceeding pro se. On November 9, 2017, the court screened 17 18 plaintiff’s complaint as the court is required to do under 28 U.S.C. § 1915A(a). The court 19 informed plaintiff that his complaint states a claim upon which relief could be granted arising 20 under the Eighth Amendment against defendants Dixon and Farris for use of excessive force and, 21 in all other respects, plaintiff’s complaint fails to state claims upon which relief can be granted. 22 The court informed plaintiff that he could proceed on his Eighth Amendment claims against 23 Dixon and Farris, or attempt to cure the deficiencies with respect to other claims in an amended 24 complaint. The time allotted to plaintiff to file an amended complaint has expired. Therefore, 25 this action will proceed on the Eighth Amendment claims against Dixon and Ferris. 26 ///// 27 ///// 28 ///// 1 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Service of process is appropriate for defendants Dixon and Ferris. 3 2. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an 4 instruction sheet and a copy of the complaint. 5 3. Within thirty days from the date of this order, plaintiff shall complete the attached 6 Notice of Submission of Documents and submit the following documents to the court: 7 a. The completed Notice of Submission of Documents; 8 b. One completed summons; 9 c. One completed USM-285 form for each defendant listed in number 1 above; 10 and 11 d. Three copies of the complaint. 12 4. Plaintiff need not attempt service on any defendant and need not request waiver of 13 service. Upon receipt of the above-described documents, the court will direct the United States 14 Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 15 without payment of costs. 16 5. The Clerk of the Court assign a district court judge to this case. 17 IT IS HEREBY RECOMMENDED that all defendants other than defendants Dixon and 18 Ferris be dismissed. 19 These findings and recommendations will be submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, plaintiff may file written objections 22 with the court. The document should be captioned “Objections to Findings and 23 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 2 1 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 2 Cir. 1991). 3 Dated: December 26, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 1 diaz1240.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ROY DIAZ, 10 No. 2:17-cv-1240 CKD P Plaintiff, 11 v. 12 N. DIXON, et al., 13 NOTICE OF SUBMISSION OF DOCUMENTS Defendants. 14 15 16 Plaintiff submits the following documents in compliance with the court's order filed _____________________: 17 ____ completed summons form 18 ____ completed USM-285 forms 19 ____ copies of the ___________________ Complaint 20 21 DATED: 22 23 24 ____________________ Plaintiff 25 26 27 28 1

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