(DLB) (PC)Maeshack v. Avenal State Prison, et al

Filing 25

ORDER FOR THIS ACTION TO PROCEED ONLY AGAINST DEFENDANTS HARBISON, McINTYRE, WEED AND SWEETLAND ON PLAINTIFFS MEDICAL CARE CLAIMs UNDER THE EIGHTH AMENDMENT AND CLAIMS UNDER STATE MEDICAL MALPRACTICE LAW, AND DISMISSING ALLOTHER CLAIMS AND DEFENDANTS signed by Magistrate Judge Gary S. Austin on 1/12/2009. (Figueroa, O)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. AVENAL STATE PRISON, et al., Defendants. / Plaintiff Robert Maeshack ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on December 22, 2005. On October 27, 2008, this action was reassigned to Magistrate Judge Gary L. Austin for all purposes within the meaning of 28 U.S.C. § 636 (c). (Doc. 20.) The case now proceeds on the amended complaint filed by plaintiff on March 16, 2007. (Doc. 17.) The amended complaint names MTA Harbinson, Dr. Weed, Dr. McIntyre, Dr. Sweetland, Lieutenant Smith and CMO Greenough as defendants, and alleges claims for inadequate medical care under the Eighth Amendment, retaliation under the First Amendment, Due Process violations, and state medical malpractice. On November 21, 2008, the court screened plaintiff's amended complaint pursuant to 28 U.S.C. § 1915A and found that it states cognizable claims for relief under section 1983 against MTA Harbinson, Dr. Weed, Dr. McIntyre and Dr. Sweetland, for inadequate medical care under the Eighth Amendment and state medical malpractice. (Doc. 90.) Plaintiff was given leave to either file a second amended complaint, or in the alternative, to notify the court of his willingness to proceed only on the claims found cognizable by the court, within thirty days. Id. 1 On December 15, 2008, plaintiff filed ROBERT MAESHACK, Plaintiff, 1:06-cv-00011-GSA-PC ORDER FOR THIS ACTION TO PROCEED ONLY AGAINST DEFENDANTS HARBISON, McINTYRE, WEED AND SWEETLAND ON PLAINTIFF'S MEDICAL CARE CLAIMS UNDER THE EIGHTH AMENDMENT AND CLAIMS UNDER STATE MEDICAL MALPRACTICE LAW, AND DISMISSING ALL OTHER CLAIMS AND DEFENDANTS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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written notification to the court that he is willing to proceed only on the claims found cognizable by the court in the amended complaint. (Doc. 22.) Based on the foregoing, it is HEREBY ORDERED that: 1. This action now proceeds only against defendants MTA Harbinson, Dr. McIntyre, Dr. Weed and Dr. Sweetland for denial of inadequate medical care under the Eighth Amendment, and for medical malpractice under state law; 2. 3. All remaining claims and defendants are DISMISSED from this action; Plaintiff's claims against defendants Avenal State Prison, Greenough, Smith, and Grazier are DISMISSED from this action for plaintiff's failure to state a claim upon which relief may be granted against them; 4. Plaintiff's Due Process and retaliation claims are DISMISSED from this action for plaintiff's failure to state a claim upon which relief may be granted under section 1983; and 5. The Clerk is DIRECTED to reflect on the court's docket the dismissal of defendants Avenal State Prison, Greenough, Smith, and Grazier.

IT IS SO ORDERED. Dated: 6i0kij

January 12, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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