Xavier v. Roche et al

Filing 82

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/31/14 granting 80 Motion for clarification. (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 13 14 15 No. 2:09-cv-0783 LKK CKD P Plaintiff, v. ORDER M. FRENCH, et al., Defendants. 16 17 18 Plaintiff has filed a motion seeking clarification of the screening order issued June 5, 2014 19 regarding the operative fourth amended complaint (“FAC”). (ECF No. 80; see also ECF No. 81.) 20 In that order, the undersigned found the FAC to state a claim “for deliberate indifference to 21 serious medical needs against defendants French and Friend.” (ECF No. 77 at 2.) 22 As to defendant Debbie Holland, who was previously served in this action, the screening 23 order noted that she was not named in the FAC. (Id.) In fact, in support of defendants’ now- 24 vacated motion for summary judgment, Holland declared: 25 26 27 28 I do not believe that I am the person referred to in the [Third Amended Complaint]. I have never been a physical therapist. I have never been to Susanville and I have never worked at High Desert State Prison. To the best of my knowledge, I have never met Mr. Xavier and I have never examined him or participated in his medical care or treatment. 1 1 (ECF No. 65-3 at 2.) In apparent recognition of this error, plaintiff named a different defendant – 2 physical therapist “R. Holland” – in the FAC. The undersigned recommended that defendant 3 Debbie Holland be formally dismissed from this action, and she is no longer a party. (ECF Nos. 4 77, 81.) 5 As to named defendants R. Holland and S.M. Roche, the undersigned determined that 6 plaintiff’s allegations did not state a claim under § 1983. Nor did it appear that leave to amend 7 was warranted as to these defendants, who have not been served and are not listed as active 8 defendants in the docket of this action. (See ECF No. 29 at 1-2.) 9 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for clarification (ECF 10 No. 80) is granted. 11 Dated: July 31, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 2 / xavi0783.clarif 19 20 21 22 23 24 25 26 27 28 2

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