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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY R. XAVIER,

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No. 2:09-cv-0783 LKK CKD P

Plaintiff,
v.

ORDER

M. FRENCH, et al.,
Defendants.

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Plaintiff has filed a motion seeking clarification of the screening order issued June 5, 2014

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regarding the operative fourth amended complaint (“FAC”). (ECF No. 80; see also ECF No. 81.)

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In that order, the undersigned found the FAC to state a claim “for deliberate indifference to

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serious medical needs against defendants French and Friend.” (ECF No. 77 at 2.)

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As to defendant Debbie Holland, who was previously served in this action, the screening

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order noted that she was not named in the FAC. (Id.) In fact, in support of defendants’ now-

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vacated motion for summary judgment, Holland declared:

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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.
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(ECF No. 65-3 at 2.) In apparent recognition of this error, plaintiff named a different defendant –

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physical therapist “R. Holland” – in the FAC. The undersigned recommended that defendant

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Debbie Holland be formally dismissed from this action, and she is no longer a party. (ECF Nos.

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77, 81.)

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As to named defendants R. Holland and S.M. Roche, the undersigned determined that

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plaintiff’s allegations did not state a claim under § 1983. Nor did it appear that leave to amend

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was warranted as to these defendants, who have not been served and are not listed as active

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defendants in the docket of this action. (See ECF No. 29 at 1-2.)

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for clarification (ECF

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No. 80) is granted.

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Dated: July 31, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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