Walker v. Whiting et al

Filing 8

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/15/14 ORDERING that Plaintiff's REQUEST for leave to proceed IFP 3 is GRANTED. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shal l be collected and paid in accordance with this courts order to the Nevada Department of Corrections (NDOC) filed concurrently herewith. Service is appropriate for the following defendants: Lee, Bilgera, Whiting, Johns, Blanco, and Massa. The Clerk shall send Plaintiff six USM-285 forms, one summons, an instruction sheet and a copy of the complaint filed 9/5/14.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN WALKER,

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No. 2:14-cv-2064 CKD P
Plaintiff,

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v.

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WHITING, et al.,

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ORDER

Defendants.

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Plaintiff is a Nevada state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42

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U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. §

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1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §

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636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §
1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the

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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.

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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding

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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by

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the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account
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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
Plaintiff’s complaint concerns his incarceration at the Sacramento County Jail earlier this

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year. He alleges that, when he was transferred to the jail on June 1, 2014, he had a medical

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chrono for a lower bunk due to his health issues and recent stroke. After he was assigned a top

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bunk, he informed defendant correctional officers Lee, Bilgera, Whiting, Johns, and Blanco about

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the chrono, but they did nothing. He filed a grievance, and on June 10, defendant Lt. Massa

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confirmed the chrono and notified custody staff, yet plaintiff was not reassigned to a lower bunk.

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On June 14, while attempting to climb down from his bunk, plaintiff fell and injured his head, left

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leg and ankle. Afterward, he could not put pressure on his left leg. On June 17, after plaintiff

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filed a grievance, a non-defendant correctional officer ordered plaintiff to be moved to a bottom

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bunk. (ECF No. 1.)

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For the next several weeks, plaintiff required wound care for his leg. During this time, he

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was housed in an area infested with roaches and other insects. Plaintiff alleges that he asked

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defendants Bilgera, Blanco, Lee, and Johns for cleaning supplies for his cell, but they did not

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supply them. (Id.)

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The undersigned concludes that the complaint states a cognizable claim for relief pursuant

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to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) as to defendants Lee, Bilgera, Whiting, Johns,

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Blanco, and Massa concerning their alleged deliberate indifference to plaintiff’s need for a lower

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bunk. If the allegations of the complaint are proven, plaintiff has a reasonable opportunity to

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prevail on the merits of this action.

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

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 3) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees

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shall be collected and paid in accordance with this court’s order to the Nevada Department of

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Corrections (NDOC) filed concurrently herewith.

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3. Service is appropriate for the following defendants: Lee, Bilgera, Whiting, Johns,

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Blanco, and Massa.

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4. The Clerk of the Court shall send plaintiff six USM-285 forms, one summons, an
instruction sheet and a copy of the complaint filed September 5, 2014.

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5. Within thirty days from the date of this order, plaintiff shall complete the attached

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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 3 above;

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and

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d. Seven copies of the endorsed complaint filed September 5, 2014.

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

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Upon receipt of the above-described documents, the court will direct the United States Marshal to

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serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment

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of costs.

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Dated: October 15, 2014

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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN WALKER,

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No. 2:14-cv-2064 CKD P
Plaintiff,

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v.

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WHITING, et al.,

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NOTICE OF SUBMISSION OF
DOCUMENTS
Defendants.

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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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________________________________

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Plaintiff
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