Xavier v. Roche et al

Filing 77

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 6/5/14 DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms within 30 days. Service is appropriate for J. Friend. Clerk to send plaintiff: 1 Su mmons, 1 USM-285 Form, and 1 copy of the Amended Complaint filed on 5/19/14. Plaintiffs motion to file a fourth amended complaint (ECF No. 73 ) is GRANTED; Clerk of Court shall change the docket of ECF No. 74 to Fourth Amended Complaint"; it is RECOMMENDED that defendant Debbie Holland be dismissed from this action with prejudice. Referred to Judge Lawrence K. Karlton; Objections to F&R due within 14 days. (Dillon, M)

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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 GARY R. XAVIER, 12 Plaintiff, 13 14 No. 2:09-cv-0783 LKK CKD P v. ORDER M. FRENCH, et al., 15 Defendants. 16 17 18 This prisoner civil rights action brought pursuant to 42 U.S.C. § 1983 proceeds on the 19 Third Amended Complaint (“TAC”) against defendants French and Holland. The TAC was 20 drafted by plaintiff’s former attorney; however, plaintiff is now proceeding pro se. Defendants 21 have filed a motion for summary judgment (ECF No. 65), and plaintiff has been ordered to file 22 either a supplemental motion pursuant to Fed. R. Civ. P. 56(d) or an opposition to the motion for 23 summary judgment. (ECF No. 72.) Before the court is plaintiff’s motion to file a fourth amended complaint. (ECF No. 73.) 24 25 Essentially plaintiff requests that this action go forward on his proposed amended complaint 26 rather than the TAC drafted by his former attorney. (ECF No. 75.) 27 ///// 28 1 1 Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be given 2 freely when justice requires. In deciding whether justice requires granting leave to amend, factors 3 to be considered include the presence or absence of undue delay, bad faith, dilatory motive, 4 repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing 5 party, and futility of proposed amendment. 6 The court has reviewed the proposed Fourth Amended Complaint, which names four 7 defendants: French, Holland, Friend, and Roche. The court concludes that, construed liberally, 8 the proposed complaint states a claim for deliberate indifference to serious medical needs against 9 defendants French and Friend. As Friend is not named in the TAC, amendment is not futile. 10 Moreover, as the proposed amended complaint represents plaintiff’s first attempt to state his 11 claims without the involvement of his former attorney, with whom plaintiff disagreed about how 12 to proceed in this action, the court finds that justice requires leave to amend in this instance. 13 As to defendants’ pending motion for summary judgment, the court notes that one 14 defendant – Debbie Holland – is not named in the Fourth Amended Complaint. Thus the court 15 will recommend that she be dismissed from this action. Rather than adjudicate summary 16 judgment separately as to defendant French and new defendant Friend, the court in the interest of 17 judicial efficiency will vacate the motion for summary judgment without prejudice to renewal. 18 Accordingly, IT IS HEREBY ORDERED THAT: 19 1. Plaintiff’s motion to file a fourth amended complaint (ECF No. 73) is granted; 20 2. The Clerk of Court shall change the docket of ECF No. 74 to “Fourth Amended 21 Complaint”; 22 3. Service is appropriate for the following additional defendants: J. Friend; 23 4. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an 24 25 instruction sheet and a copy of the complaint filed May 19, 2014; 5. Within thirty days from the date of this order, plaintiff shall complete the attached 26 Notice of Submission of Documents and submit the following documents to the court: 27 a. The completed Notice of Submission of Documents; 28 b. One completed summons; 2 1 2 c. One completed USM-285 form for each defendant listed in number 3 above; and 3 d. Two copies of the endorsed complaint filed May 19, 2014. 4 6. Plaintiff need not attempt service on defendant and need not request waiver of service. 5 Upon receipt of the above-described documents, the court will direct the United States Marshal to 6 serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment 7 of costs; 8 9 10 11 12 13 7. Defendants’ motion for summary judgment (ECF No. 65) is vacated without prejudice to renewal; and 8. All pending deadlines in this action are vacated. The court will issue new deadlines following service on defendant Friend or as otherwise appropriate. IT IS HEREBY RECOMMENDED that defendant Debbie Holland be dismissed from this action with prejudice. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 19 failure to file objections within the specified time may waive the right to appeal the District 20 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 Dated: June 5, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2 / xavi0783.amend_2 3

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