Develder v. Hirshler et al

Filing 37

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/18/14 ORDERING that Service is appropriate for defendant Hirshler; The U.S. Marshal shall personally serve a copy of this order and the amended complaint 36 on defendant J. Hirshler at 73 40 Woodrow Dr., Oakland, California, 94611; Defendant Hirshler shall respond to the complaint within 21 days after service, pursuant to Federal Rule of Civil Procedure 12; and Should defendant fail to answer or otherwise respond to the amended complaint, plaintiff may again seek default judgment against him.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL J. DEVELDER,

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Plaintiff,

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v.

No. 2:09-cv-1803-EFB P

ORDER

J. HIRSHLER, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983.1 He has previously sought default judgment against defendant Hirshler, who

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failed to plead or otherwise defend. See ECF Nos. 19, 20, 21, 22, 24, 27, 30, 31. The court

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concluded it could not grant default judgment on the complaint as it stood, because it failed to

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include sufficient allegations that defendant acted with the requisite “deliberately indifferent”

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mindset. ECF No. 31 at 4-5. The court directed plaintiff to amend the complaint and thereafter

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seek default judgment, should defendant again fail to respond.

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Plaintiff has filed an amended complaint that states sufficient facts that defendant, in

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transferring plaintiff while he was scheduled for urgently-needed surgery, knew of plaintiff’s

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need for the surgery and nevertheless approved his transfer in order to save his institution the cost

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The case is before the undersigned pursuant to plaintiff’s consent. ECF No. 4.
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of the surgery. ECF No. 36 at 4-6. Plaintiff has thereby stated a cognizable Eighth Amendment

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claim against defendant Hirshler.

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Accordingly, it is hereby ordered that:

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1. Service is appropriate for defendant Hirshler;

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2. The U.S. Marshal shall personally serve a copy of this order and the amended complaint

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(ECF No. 36) on defendant J. Hirshler at 7340 Woodrow Dr., Oakland, California, 94611;

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3. Defendant Hirshler shall respond to the complaint within 21 days after service, pursuant to

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Federal Rule of Civil Procedure 12; and
4. Should defendant fail to answer or otherwise respond to the amended complaint, plaintiff
may again seek default judgment against him.
Dated: December 18, 2014.

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