(PC) Reed v. Leatherman et al, No. 2:2018cv00038 - Document 6 (E.D. Cal. 2018)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/24/2018 ORDERING plaintiff's 2 request to proceed IFP is GRANTED; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDC R order; Service is appropriate for B. Dennis, D. Leatherman, M. Roberts, A. Shearer, V. Vitale; the Clerk shall send plaintiff forms for service to be completed and returned within 30 days, along with the Notice of Submission; and the Clerk shall assign a district court judge to this case. IT IS RECOMMENDED that defendant Baughman be dismissed from this action. Assigned and referred to Judge Kimberly J. Mueller; 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 PETER J. REED, 12 13 14 15 No. 2:18-cv-0038 CKD P Plaintiff, v. ORDER AND D. LEATHERMAN, et al., FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and 20 plaintiff has consented to have all matters in this action before a United States Magistrate Judge. 21 See 28 U.S.C. § 636(c). 22 23 24 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 25 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect 26 twenty percent of the preceding month’s income credited to plaintiff’s prison trust account and 27 forward it to the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, 28 until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 1 The court is required to screen complaints brought by prisoners seeking relief against a 2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 6 The court has conducted the required screening and finds that plaintiff may proceed on 7 claims arising under the Eighth Amendment against defendants Leatherman, Shearer, Roberts, 8 Dennis and Vitale. As for defendant Warden Baughman, plaintiff fails to state a claim upon 9 which relief can be granted as plaintiff fails to point to facts indicating Baughman personally 10 participated in any civil rights violations against plaintiff nor otherwise cause such violations. 11 See Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). 12 In accordance with the above, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 14 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 15 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 16 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 17 California Department of Corrections and Rehabilitation filed concurrently herewith. 18 3. Service is appropriate for defendants Leatherman, Shearer, Roberts, Dennis and Vitale. 19 4. The Clerk of the Court shall send plaintiff five USM-285 forms, one summons, an 20 instruction sheet and a copy of the complaint. 21 5. Within thirty days from the date of this order, plaintiff shall complete the attached 22 Notice of Submission of Documents and submit the following documents to the court: 23 a. The completed Notice of Submission of Documents; 24 b. One completed summons; 25 c. One completed USM-285 form for each defendant listed in number 3 above; 26 and 27 28 d. Six copies of the complaint. ///// 2 1 6. Plaintiff need not attempt service on defendants and need not request waiver of service. 2 Upon receipt of the above-described documents, the court will direct the United States Marshal to 3 serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment 4 of costs. 5 7. The Clerk of the Court assign a district court judge to this case. 6 IT IS HEREBY RECOMMEDED that defendant Baughman be dismissed from this 7 action. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen after 10 being served with these findings and recommendations, plaintiff may file written objections with 11 the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 12 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 13 waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 14 1991). 15 Dated: April 24, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 1 reed0038.frs 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 PETER J. REED, 12 13 14 No. 2:18-cv-0038 CKD P Plaintiff, v. NOTICE OF SUBMISSION D. LEATHERMAN, et al., 15 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