Lipsey v. Reddy et al

Filing 12

ORDER DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms; Service is appropriate for S. Celedon, R. Hernandez, J. Mancilla; FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims and Defendants, with any Objecti ons Due within Fourteen Days signed by Magistrate Judge Barbara A. McAuliffe on 6/19/2017. Referred to Judge Lawrence J. O'Neill. Clerk to send plaintiff: 3 Summons, 3 USM-285 Forms, and 1 copies of the Complaint filed on 4/24/2017. (Attachments: # 1 USM Instructions)(Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 CHRISTOPHER LIPSEY, JR., Plaintiff, 13 14 15 16 17 18 19 20 vs. DR. REDDY, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:17-cv-00569-LJO-BAM (PC) ORDER FINDING SERVICE OF COMPLAINT APPROPRIATE AGAINST CERTAIN DEFENDANTS, AND FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS, WITH ANY OBJECTIONS DUE WITHIN FOURTEEN DAYS Plaintiff Christopher Lipsey (“Plaintiff”) is a state prisoner proceeding pro se and in 21 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred 22 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302. 23 On June 6, 2017, the Court screened Plaintiff’s complaint filed on April 24, 2017, 24 pursuant to 28 U.S.C. § 1915A, and found that it stated a cognizable claim for excessive force in 25 violation of the Eighth Amendment against Defendants Hernandez, Celedon, and Mancilla for 26 allegedly attacking Plaintiff on March 21, 2016. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 27 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court further 28 found that Plaintiff failed to state any other cognizable claims. Plaintiff was ordered to either file 1 1 an amended complaint or notify the Court that he was willing to proceed only on the cognizable 2 claim. (ECF No. 9.) 1 3 On June 14, 2017, Plaintiff notified the Court that he did not intend to file any amended 4 complaint and wished to proceed only with the cognizable claims identified by the Court. (ECF 5 No. 11.) Thus, the Court finds it appropriate to order service of the complaint on Defendants 6 Hernandez, Celedon, and Mancilla. The Court will further recommend the dismissal of all other 7 claims and defendants for the failure to state a claim, for the reasons discussed in the June 6, 8 2017 screening order. 2 Accordingly, IT IS HEREBY ORDERED as follows: 9 1. Service is appropriate for defendant: 10 11 Correctional Officer R. Hernandez 12 Correctional Officer J. Mancilla 13 Correctional Officer S. Caledon 14 2. The Clerk of the Court shall send to Plaintiff three (3) USM-285 forms, three (3) 15 summons, a Notice of Submission of Documents form, an instruction sheet and a 16 copy of the complaint, filed on April 24, 2017 (ECF No. 1); 3. Within thirty (30) days from the date of this Order, Plaintiff shall complete the 17 18 attached Notice of Submission of Documents and submit the completed Notice to the 19 Court with the following documents: 20 a. One completed summons for each of the defendants listed above; 21 b. One completed USM-285 form for each of the defendants listed above; and 22 23 24 1 25 26 27 28 The Court issued separate findings and recommendations regarding the dismissal, without prejudice, of Plaintiff’s other claims on the basis of improper venue. (ECF No. 10.) Those findings and recommendations are still pending. 2 The Court is also in receipt of Plaintiff’s information for the summons, that the Defendant Hernandez in this matter has a first initial “R,” has been a correctional officer for 29 years, and has a twin brother who works at the institution. This information shall be passed on to the United States Marshal for use in service of process, if necessary. 2 c. 1 four (4) copies of the endorsed complaint, filed on April 24, 2017 (ECF No. 1); 2 3 4. Plaintiff need not attempt service on the defendant and need not request waiver of 4 service. Upon receipt of the above-described documents, the Court will direct the 5 United States Marshal to serve the above-named defendant pursuant to Federal Rule 6 of Civil Procedure 4 without payment of costs; 7 5. Plaintiff’s failure to comply with this order will result in a recommendation that 8 this action be dismissed for failure to obey a court order and failure to 9 prosecute. *** 10 11 Also, the Court HEREBY RECOMMENDS that Plaintiff’s claim for a violation of his 12 Fourth Amendment rights arising from a March 21, 2016 strip search be found not to be 13 cognizable, and be dismissed for failure to state a claim upon which relief may be granted. 14 These findings and recommendations will be submitted to the United States District 15 Judge assigned to the case, pursuant to the provision of 28 U.S.C. §636 (b)(1)(B). Within 16 fourteen (14) days after being served with these Finding and Recommendations, Plaintiff may 17 file written objections with the Court. The document should be captioned “Objections to 18 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 19 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.2d F.3d 20 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 22 23 24 IT IS SO ORDERED. Dated: /s/ Barbara June 19, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3

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