Brown v. Swan et al

Filing 15

ORDER signed by Magistrate Judge John F. Moulds on 12/15/11 granting 10 Motion for Reconsideration. Service is appropriate for defendant California Department of Corrections and Rehabilitation. The clerk of the court shall send plaintiff 1 USM-285 form, instruction sheet, 1 summons and a copy of the complaint to be completed and returned within 30 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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DEXTER BROWN,

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Plaintiff,

No. 2:11-cv-2128 JFM (PC)

vs.
CORRECTIONAL SERGEANT
SWAN, D, et al.,

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Defendants.
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ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil

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rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local

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Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has moved for reconsideration of this court’s August 23, 2011 order

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declining to order service of process on the California Department of Corrections and

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Rehabilitation (CDCR). In that order, the court found that the CDCR was entitled to immunity

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from suit under the Eleventh Amendment. In his motion for reconsideration, plaintiff contends

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correctly that the Eleventh Amendment does not apply to claims under the Americans with

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Disabilities Act (ADA) brought against state agencies. See Duffy v. Riveland, 98 F.3d 447, 452

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(9th Cir. 1996) (In ADA, Congress expressly abrogated Eleventh Amendment immunity).

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Accordingly, plaintiff’s motion for reconsideration will be granted.
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The court finds that plaintiff’s complaint states a cognizable claim for relief

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against the CDCR pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of

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the complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of that

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claim. Plaintiff will be directed to complete and return the forms necessary for service of process

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on said defendant.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s November 14, 2011 motion for reconsideration is granted.

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2. Service is appropriate for the following defendant: California Department of

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Corrections and Rehabilitation.

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3. The Clerk of the Court shall send plaintiff one USM-285 forms, one summons,
an instruction sheet and a copy of the complaint filed August 11, 2011.

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4. 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 the defendant listed in number 2

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above; and

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d. Two copies of the endorsed complaint filed August 11, 2011.

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5. Plaintiff need not attempt service on defendant 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 defendant pursuant to Federal Rule of Civil Procedure 4

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without payment of costs.

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DATED: December 15, 2011.

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brow2128.rec

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEXTER BROWN,

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Plaintiff,

No. 2:11-cv-2128 JFM (PC)

vs.
CORRECTIONAL SERGEANT SWAN, D,
et al.,

NOTICE OF SUBMISSION

Defendants.
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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
Complaint

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DATED:

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Plaintiff
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