Xavier v. Roche et al
ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/31/14 granting 80 Motion for clarification. (Dillon, M)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
GARY R. XAVIER,
No. 2:09-cv-0783 LKK CKD P
M. FRENCH, et al.,
Plaintiff has filed a motion seeking clarification of the screening order issued June 5, 2014
regarding the operative fourth amended complaint (“FAC”). (ECF No. 80; see also ECF No. 81.)
In that order, the undersigned found the FAC to state a claim “for deliberate indifference to
serious medical needs against defendants French and Friend.” (ECF No. 77 at 2.)
As to defendant Debbie Holland, who was previously served in this action, the screening
order noted that she was not named in the FAC. (Id.) In fact, in support of defendants’ now-
vacated motion for summary judgment, Holland declared:
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.
(ECF No. 65-3 at 2.) In apparent recognition of this error, plaintiff named a different defendant –
physical therapist “R. Holland” – in the FAC. The undersigned recommended that defendant
Debbie Holland be formally dismissed from this action, and she is no longer a party. (ECF Nos.
As to named defendants R. Holland and S.M. Roche, the undersigned determined that
plaintiff’s allegations did not state a claim under § 1983. Nor did it appear that leave to amend
was warranted as to these defendants, who have not been served and are not listed as active
defendants in the docket of this action. (See ECF No. 29 at 1-2.)
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for clarification (ECF
No. 80) is granted.
Dated: July 31, 2014
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
2 / xavi0783.clarif
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