Mazza v. Austin et al

Filing 36

ORDER signed by Magistrate Judge Allison Claire on 09/21/15 ordering the clerk of court is directed to designate plaintiff's original complaint 3 as the "Operative Complaint;" the Clerk of Court is also directed to combine and separ ately file plaintiff's new exhibits (at ECF No. 32 at 10), and ECF No. 32 at 147-62 (Exhibits 23-7) as an "Addendum to Operative complaint. The clerk of the court is also directed to send plaintiff together with a copy of this order, a cop y of the newly-filed "Addendum to Operative Complaint", and 1 blank summons for defendant McCue. Within 21 days after the filing date of this order, plaintiff shall submit to the court the completed USM-285 form for defendant McCue with th e attached Notice of Submission of Document. Failure to return the information will be construed as plaintiff's request that defendant McCue be dismissed from this action, together with defendants Beard, Kelso, Swarthout and Pfile. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRYAN MAZZA,

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Plaintiff,

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No. 2:14-cv-0874 AC P

v.

ORDER

L. AUSTIN, et al.,

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Defendants.

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Plaintiff is a state prisoner incarcerated at California State Prison Solano (CSP-SOL),1

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who proceeds pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C.

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§ 1983. By order filed September 2, 2014, this court found that plaintiff’s original complaint

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states cognizable claims against defendants Austin, Kuersten, McCue and Tan, and directed

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plaintiff to submit documents for service of process on these defendants. ECF No. 15. However,

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plaintiff instead filed an amended complaint. ECF No. 27.
By order filed May 5, 2015, this court dismissed plaintiff’s amended complaint because it

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Although this case has been pending for some time, the court has confirmed that plaintiff
remains incarcerated at CSP-SOL. See http://inmatelocator.cdcr.ca.gov/ (Inmate Locator website
operated by the California Department of Corrections and Rehabilitation). See Fed. R. Evid. 201
(court may take judicial notice of facts that are capable of accurate determination by sources
whose accuracy cannot reasonably be questioned); see also City of Sausalito v. O'Neill, 386 F.3d
1186, 1224 n.2 (9th Cir. 2004) (“We may take judicial notice of a record of a state agency not
subject to reasonable dispute.”).

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was incomplete. The court granted plaintiff leave to proceed on his original complaint (ECF No.

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3) (with the additional finding that the original complaint also states a claim against defendant

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Lipson, upon whom service could be made), or to file a further amended complaint. See ECF No.

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28.

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Plaintiff submitted a Second Amended Complaint (SAC), see ECF No. 32, which is now

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before the court for screening pursuant to 28 U.S.C. § 1915A. Review of the SAC demonstrates

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that it is also incomplete – moreover, it is identical to plaintiff’s original complaint with the

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exception that some pages are repeated, others are missing, and some exhibits are added.2

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The court concludes that this action can proceed only on plaintiff’s original complaint,

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with the addition of plaintiff’s new exhibits, against defendants Lipson, Austin, Kuersten, Tan,

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and McCue,3 on plaintiff’s Eighth Amendment claims for deliberate indifference to his serious

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medical needs. To accord plaintiff the best opportunity to present his claims, and to clarify the

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docket, the Clerk of Court will be directed to designate plaintiff’s original complaint (at ECF No.

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3) as the “Operative Complaint,” and to combine and separately file plaintiff’s new exhibits (at

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ECF No. 32 at 10 (list denoted “Adendum (sic) to Exhibits”), and ECF No. 32 at 137-62

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(Exhibits 23-7)) as an “Addendum to Operative Complaint.” Service of process of both

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documents will be ordered on defendants, as presently set forth.

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Although plaintiff continued to file amended complaints, he contemporaneously followed

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the directions of this court to submit documents necessary to complete service of process of his

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original complaint on four of the five defendants. See ECF Nos. 29, 31. It appears that plaintiff

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has submitted service information for defendants Austin, Kuersten and Tan and Lipson, but not

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Pages 1-10 and 11-20 of the SAC are duplicative (see ECF No. 32 at 1-10, 11-20), and identical
to pages 1-10 of the original complaint (see ECF No. 3 at 1-10), with the exception that the SAC
identifies ten additional exhibits (Exhs. 23-32), see ECF No. 32 at 10, and includes five of them
(Exhs. 23-7, ECF No. 32 at 137-62). Both the original complaint and SAC contain several pages
of exhibits (cf. ECF No. 3 at 11-131, with ECF No. 32 at 21-162), set forth within the bodies of
the complaints (rather than at the ends). Both complaints end with the conclusion of plaintiff’s
typed pages, except the conclusion of the SAC is incomplete while the conclusion of the original
complaint is complete (see ECF No. 3 at 132-35; cf. ECF No. 32 at 163).
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This defendant appears to be referenced as both McCue and McGue; if he is retained in this
action, plaintiff shall clarify the correct spelling.
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McCue. While plaintiff may have decided not to pursue his claims against defendant McCue (see

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court’s discussion at ECF No. 28 at 2:11-6), he will be accorded one additional opportunity to

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submit service information for McCue while the United States Marshal proceeds to serve process

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on the other defendants.

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By separate order, this court will direct the United States Marshal to serve process of

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plaintiff’s “Operative Complaint” and “Addendum to Operative Complaint,” on defendants

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Austin, Kuersten, Tan and Lipson; should plaintiff later submit the information necessary to serve

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process on defendant McCue, the court will then also order service of process on McCue.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of Court is directed to designate plaintiff’s original complaint (at ECF No.

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3) as the “Operative Complaint;” the Clerk of Court is also direct to combine and separately file

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plaintiff’s new exhibits (at ECF No. 32 at 10 (list denoted “Adendum (sic) to Exhibits”), and ECF

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No. 32 at 137-62 (Exhibits 23-7)) as an “Addendum to Operative Complaint.”

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2. The Clerk of the Court is also directed to send plaintiff, together with a copy of this

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order, a copy of the newly-filed “Addendum to Operative Complaint,” and one blank USM-285

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form for defendant McCue.4

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3. Within twenty-one (21) days after the filing date of this order, plaintiff shall submit to

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the court the completed USM-285 form for defendant McCue, together with the attached Notice

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of Submission of Document. Failure to return this information will be construed as plaintiff’s

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request that defendant McCue be dismissed from this action, together with defendants Beard,

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Kelso, Swarthout and Pfile (see generally ECF No. 15 (Order filed Sept. 2, 2014)).

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DATED: September 21, 2015

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The Clerk of Court has informed the undersigned that plaintiff already provided a summons and
sufficient copies of his original complaint to serve all five defendants. By separate order, and as a
courtesy to plaintiff, the court directs the Clerk of Court to make the requisite number of copies of
the “Addendum to Operative Complaint” for service of process by the United States Marshal in
tandem with plaintiff’s original/operative complaint.
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRYAN MAZZA,

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Plaintiff,

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No. 2:14-cv-0874 AC P

v.

NOTICE OF SUBMISSION OF DOCUMENT

L. AUSTIN, et al.,

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Defendants.

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

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filed _____________________:

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one completed USM-285 form for defendant McCue5

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____________________________________
Date

____________________________________
Plaintiff

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Plaintiff has already submitted the appropriate summons and sufficient copies of his original
complaint.
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