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

Filing 26

ORDER Finding Service of 17 Complaint Appropriate and Forwarding Service Documents to Plaintiff for Completion and Return Within Thirty Days, signed by Magistrate Judge Gary S. Austin on 1/12/2009. Service Documents due by 2/18/2009. (Attachments: # 1 USM Prisoner Instructions and Summons, # 2 First Amended Complaint), and USM-285 Forms. (Jessen, A)

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 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 within the meaning of 28 U.S.C. § 636 (c). (Doc. 20.) On February 20, 2007, the court dismissed plaintiff's complaint with leave to amend. (Doc. 15.) On March 16, 2007, plaintiff filed an amended complaint. (Doc. 17.) On November 21, 2008, after screening the amended complaint pursuant to 28 U.S.C. § 1915A, the court issued an order for plaintiff to either file a second amended complaint or notify the court of his willingness to proceed only on the claims found cognizable by the court. (Doc. 21.) On December 15, 2008, plaintiff filed 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.) The court found that the amended complaint states cognizable claims for relief under section 1983 against defendants Harbison, Dr. Weed, McIntyre 1 v. AVENAL STATE PRISON, et al., Defendants. / ROBERT MAESHACK, Plaintiff, 1:06-cv-00011-GSA-PC ORDER FINDING SERVICE OF COMPLAINT APPROPRIATE AND FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS (Doc. 17.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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and Dr. Sweetland on plaintiff's Eighth Amendment medical care claim and his state law medical malpractice claim.1 Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512-15 (2002); Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004); Jackson v. Carey, 353 F.3d 750, 754 (9th Cir. 2003); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002). Accordingly, it is HEREBY ORDERED that: 1. Service is appropriate for the following defendants: MTA HARBINSON DR. WEED DR. McINTYRE DR. SWEETLAND 2. The Clerk of the Court shall send plaintiff four (4) USM-285 forms, four (4) summonses, a Notice of Submission of Documents form, an instruction sheet and a copy of the amended complaint filed March 16, 2007. (Doc. 17.) 3. Within thirty (30) days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the court with the following documents: a. b. c. 4. Completed summonses; One completed USM-285 form for each defendant listed above; and Five (5) copies of the endorsed amended complaint filed March 16, 2007.

Plaintiff need not attempt service on defendants and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs; and

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Avenal State Prison was named as a defendant in the case caption of the original complaint, but no claims w e r e alleged against Avenal State Prison. Avenal State Prison was omitted as a defendant in the amended complaint. In an Order issued concurrently with this Order, the court dismissed plaintiff's Due Process and retaliation claims, b a s e d on plaintiff's failure to state a claim under section 1983, and dismissed plaintiff's claims against defendants A v e n a l State Prison, Greenough, Smith, and Grazier, based on plaintiff's failure to state any claim against them for w h ic h relief may be granted.

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5.

The failure to comply with this order will result in a recommendation that this action be dismissed.

IT IS SO ORDERED. Dated: 6i0kij

January 12, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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