Lear v. Leftler, et al.

Filing 27

ORDER ADOPTING 25 FINDINGS AND RECOMMENDATIONS (1) For Service of Cognizable Claims in Second Amended Complaint Against Defendants Leftler, Desousa and Aguayo, and (2) Dismissing All Other Defendants signed by District Judge Anthony W. Ishii on 6/3 0/2014. Clerk to send plaintiff: 3 Summonses, 3 USM-285 Forms, and 1 copy of the Second Amended Complaint filed on 10/15/2013. Completed Service Documents due within thirty (30) days. (Attachments: # 1 USM Prisoner Instructions). (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

RODERICK LEAR,

Case No. 1:13-cv-00882-AWI-MJS (PC)

12
Plaintiff,
13
14

v.

15
MICHELLE LEFTLER, et al.,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS (1) FOR SERVICE
OF COGNIZABLE CLAIMS IN SECOND
AMENDED COMPLAINT AGAINST
DEFENDANTS LEFTLER, DESOUSA AND
AGUAYO, and (2) DISMISSING ALL
OTHER DEFENDANTS

16
17

Defendants.

(ECF No. 25)

18
19

THIRTY-DAY DEADLINE TO RETURN
SERVICE DOCUMENTS

20
21

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

22

action filed pursuant to 42 U.S.C. § 1983. The matter was referred to a United States

23

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United

24

States District Court for the Eastern District of California.

25

On May 20, 2014, the Magistrate Judge issued Findings and Recommendations that

26

(1) the Second Amended Complaint states an excessive force claim for damages against

27

Defendants Leftler, Desousa and Aguayo, and service should be initiated against these

28

Defendants, and (2) all other claims asserted in the Second Amended Complaint and all
1

1

other named Defendants should be dismissed with prejudice. (F&R’s, ECF No. 25, at ¶ V.)

2

On June 9, 2014, Plaintiff responded to the Findings and Recommendations stating

3

his desire to proceed on cognizable claims against Defendants Leftler, Desousa and

4

Aguayo. (Resp. to F&R’s, ECF No. 26, ¶ 1.) Plaintiff did not object to the Findings and

5

Recommendations and the time for doing so has expired. (F&R’s, ECF No. 25, at ¶ V.)

6

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has

7

conducted a de novo review of this case. Having carefully reviewed the entire file, the Court

8

finds the Findings and Recommendations to be supported by the record and by proper

9

analysis.

10

Accordingly, it is HEREBY ORDERED that:

11

1.

(ECF No. 25), in full,

12
13

2.

3.

All other claims asserted in the Second Amended Complaint and all other
Defendants named in this action are dismissed with prejudice,

16
17

Plaintiff shall proceed on the Second Amended Complaint excessive force
claim for damages against Defendants Leftler, Desousa and Aguayo,

14
15

The Court adopts the Findings and Recommendations filed on May 20, 2014

4.

Service shall be initiated on the following Defendants:

18

a.

LEFTLER, CSATF Correctional Officer,

19

b.

DESOUSA, CSATF Correctional Officer,

20

c.

AGUAYO, CSATF Correctional Officer,

21

5.

The Clerk of the Court shall send Plaintiff three (3) USM-285 forms, three (3)

22

summons, a Notice of Submission of Documents form, an instruction sheet

23

and a copy of the Second Amended Complaint filed October 15, 2013,

24

6.

Within thirty (30) days from sevice of this Order, Plaintiff shall complete and

25

return to the Court the Notice of Submission of Documents along with the

26

following documents:

27

a.

Completed summons,

28

b.

One completed USM-285 form for each Defendant listed above,
2

c.

1

October 15, 2013, and

2
3

Four (4) copies of the endorsed Second Amended Complaint filed

7.

Upon receipt of the above-described documents, the Court should direct the

4

United States Marshal to serve the above-named Defendants pursuant to

5

Federal Rule of Civil Procedure 4 without payment of costs.

6
7
8

IT IS SO ORDERED.
Dated: June 30, 2014
SENIOR DISTRICT JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3