(PC) McInnis v. Vaughn et al, No. 2:2017cv01318 - Document 14 (E.D. Cal. 2018)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/25/2018 ORDERING service is appropriate for Herrera. The Clerk shall send plaintiff forms for service to be completed and returned within 30 days, along with t he Notice of Submission. The Clerk shall assign a district court judge to this case. IT IS RECOMMENDED that all defendants and claims other than plaintiff's claim for excessive force arising under the Eighth Amendment against defendant Herrera as alleged by plaintiff in claim II of his complaint be dismissed. Assigned and referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Yin, K)

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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 ROBERT MCINNIS, 12 No. 2:17-cv-1318 CKD P Plaintiff, 13 v. 14 VAUGHN, et al., 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a California prisoner proceeding pro se. The court is required to screen 17 18 complaints brought by prisoners seeking relief against a governmental entity or officer or 19 employee of a governmental entity. 28 U.S.C. § 1915A(a). The court screened plaintiff’s 20 original complaint on November 16, 2017. The court found that plaintiff’s complaint states a 21 claim against defendant Herrera upon which relief could be granted arising under the Eighth 22 Amendment for excessive force as alleged by plaintiff in claim II. The court also found that in 23 all other respects, plaintiff’s complaint fails to state claims upon which relief can be granted. The court gave plaintiff two options: 1) either proceed only on the claim identified above; 24 25 or 2) attempt to cure the deficiencies with respect to other claims in an amended complaint. The 26 time allotted to plaintiff for the filing of an amended complaint has expired. 27 ///// 28 ///// 1 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Service is appropriate for defendant Herrera; 3 2. The Clerk of the Court shall send plaintiff a USM-285 form, 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; and 10 d. two copies of the complaint. 11 4. Plaintiff need not attempt service on defendant Herrera and need not request waiver of 12 service. Upon receipt of the above-described documents, the court will direct the United States 13 Marshal to serve defendant Herrera pursuant to Federal Rule of Civil Procedure 4 without 14 payment of costs. 15 5. The Clerk of the Court assign a district court judge to this case. 16 IT IS HEREBY RECOMMENDED that all defendants and claims other than plaintiff’s 17 claim for excessive force arising under the Eighth Amendment against defendant Herrera as 18 alleged by plaintiff in claim II of his complaint be dismissed. 19 These findings and recommendations are 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 after 21 being served with these findings and recommendations, plaintiff may file written objections with 22 the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 23 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 2 1 waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 2 1991). 3 Dated: April 25, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 1 mcin1318.1 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 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT MCINNIS, 12 No. 2:17-cv-1318 CKD P Plaintiff, 13 v. 14 VAUGHN, et al., 15 NOTICE OF SUBMISSION OF DOCUMENTS Defendants. 16 17 18 Plaintiff 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 ___________________ Complaint 22 23 DATED: 24 ____________________ Plaintiff 25 26 _______________________________ 27 28 1

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