Mitchell v. Cate et al

Filing 13

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 10/17/11 ORDERING service is apporpriat for defendants McDonald, Gower, Davey, Van Leer, Sanders, Miranda and Clark. The clerk of the court shall send plaintiff 7 USM-285 forms, instruction sheet and a copy of the 05/09/11 complaint to be completed and returned within 30 days. Also, RECOMMENDING that for the reasons set forth in the order filed on 09/14/11 9 that defendants Cate, Kernan, Chapman, Harkness and Dangler be dismissed from this action. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WESLEY MITCHELL,

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Plaintiff,

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vs.
MATTHEW L. CATE, et al.,

ORDER &

Defendants.

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No. CIV-S-11-1240 JAM GGH P

FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action

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filed pursuant to 42 U.S.C. § 1983. By order filed September 14, 2011, several defendants in

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plaintiff's complaint were dismissed with leave to file an amended complaint. Evidently electing

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not to file an amended complaint, plaintiff, by filing dated September 21, 2011, has informed the

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court that he elects to proceed only as to the defendants within the original complaint against

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whom it was determined that colorable claims had been framed.

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The complaint states a cognizable claim for relief pursuant to 42 U.S.C. § 1983

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and 28 U.S.C. § 1915A(b) as to certain defendants. If the allegations of the complaint as to these

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defendants are proven, plaintiff has a reasonable opportunity to prevail on the merits of this

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action. The court will also herein recommend dismissal of the defendants previously dismissed

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with leave to amend.
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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Service is appropriate for the following defendants: McDonald, Gower,

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Davey, Van Leer, Sanders, Miranda and Clark.

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2. The Clerk of the Court shall send plaintiff seven (7) USM-285 forms, one
summons, an instruction sheet and a copy of the complaint filed May 9, 2011.

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3. Within thirty days from the date of this order, plaintiff shall complete the
attached Notice of Submission of Documents and submit the following documents to the court:

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a. The completed Notice of Submission of Documents;

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b. One completed summons;

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c. One completed USM-285 form for each defendant listed in number 1

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above; and

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d. Eight (8) copies of the endorsed complaint filed May 9, 2011.

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4. Plaintiff need not attempt service on defendants and need not request waiver of

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service. Upon receipt of the above-described documents, the court will direct the United States

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Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4

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without payment of costs.

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IT IS RECOMMENDED for the reasons set forth in the Order, filed on September

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14, 2011 (docket # 9), that defendants Cate, Kernan, Chapman, Harkness and Dangler be

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dismissed from this action.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court's order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 17, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:009
mitc1240.1+

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WESLEY MITCHELL,

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Plaintiff,

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No. CIV-S-11-1240 GGH P

vs.
MATTHEW L. CATE, et al.,

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NOTICE OF SUBMISSION

Defendants.

OF DOCUMENTS

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Plaintiff hereby submits the following documents in compliance with the court's
order filed

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completed summons form

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completed USM-285 forms

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copies of the May 9, 2011
Complaint

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DATED:

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Plaintiff
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