Goods v. McCumber, et al.

Filing 25

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 3/22/2017 ORDERING service is appropriate for J. R. Bradford, A. Dennehy, D. Hamad, P. Kemp, and D. Triche. The Clerk shall send plaintiff forms for service to be completed and returned within 30 days, along with the Notice of Submission. IT IS RECOMMENDED that plaintiff's claims against Virga, Green and Arent be dismissed without prejudice. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY GOODS, 12 13 14 15 No. 2:14-cv-2580 TLN KJN P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS JEFFERY MCCUMBER, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with an action filed 18 pursuant to 42 U.S.C. § 1983. Plaintiff’s second amended complaint is now before the court. 19 Plaintiff alleges that defendants interfered with his access to the court by denying him the ability 20 to photocopy his habeas petition which exceeded fifty pages in length. 21 As plaintiff was previously informed, the court is required to screen complaints brought 22 by prisoners seeking relief against a governmental entity or officer or employee of a 23 governmental entity. 28 U.S.C. § 1915A(a). 24 On December 11, 2015, plaintiff was granted leave to provide documents for service of 25 process on defendants Bradford, Dennehy, Hamad, Kemp, and Triche, or to attempt to amend his 26 pleading to state a cognizable claim against defendant McCumber. In his second amended 27 complaint, plaintiff re-pled his claims against defendants Bradford, Dennehy, Hamad, Kemp, and 28 Triche, but did not attempt to state a cognizable claim against defendant McCumber. Rather, 1 1 plaintiff named three new individuals as defendants: former warden Tim Virga, D. Green, and B. 2 Arent. 3 Plaintiff was not granted leave to name new defendants in this 2014 case. Moreover, this 4 action was filed on November 4, 2014, and actions taken by Green1 and Arent, alleged to have 5 occurred after November 17, 2014, could not have been exhausted through administrative 6 grievances prior to the filing of this action. Also, defendant Virga’s sole involvement was 7 addressing plaintiff’s administrative appeals on July 13, and December 6, 2013. (ECF No. 22 at 8 6.) For all of these reasons, the undersigned recommends that plaintiff’s claims against Virga, 9 Green and Arent be dismissed without prejudice. 10 The second amended complaint states potentially cognizable First Amendment claims for 11 relief against defendants Bradford, Dennehy, Hamad, Kemp, and Triche pursuant to 42 U.S.C. 12 § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the amended complaint are proven, 13 plaintiff has a reasonable opportunity to prevail on the merits of this action.2 14 In accordance with the above, IT IS HEREBY ORDERED that: 15 1. Service is appropriate for the following defendants: Bradford, Dennehy, Hamad, 16 Kemp, and Triche. 17 18 2. The Clerk of the Court shall send plaintiff five USM-285 forms, one summons, an instruction sheet and a copy of the amended complaint (ECF No. 22). 19 3. Within thirty days from the date of this order, plaintiff shall complete the attached 20 Notice of Submission of Documents and submit the following documents to the court: 21 a. The completed Notice of Submission of Documents; 22 b. One completed summons; 23 24 25 26 27 28 1 Also, in response to the recommendation that plaintiff’s motion for injunctive relief be granted, defendants, by general appearance, provided evidence that D. Greene approved various requests for photocopies of plaintiff’s petition for writ of habeas corpus: on February 10, 2015; November 18, 2014; November 4, 2014; October 31, 2014; and October 24, 2014. (ECF No. 15 at 5.) 2 Since the filing of plaintiff’s amended pleading, plaintiff’s federal habeas petition was dismissed as barred by the statute of limitations. Goods v. McCumber, No. 2:16-cv-0914 JGB (SK) (C.D. Cal. Jan. 20, 2017). 2 1 2 c. One completed USM-285 form for each defendant listed in number 1 above; and 3 d. Six copies of the endorsed amended complaint. (ECF No. 22.) 4 4. Plaintiff need not attempt service on defendants and need not request waiver of service. 5 Upon receipt of the above-described documents, the court will direct the United States Marshal to 6 serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment 7 of costs. 8 9 IT IS HEREBY RECOMMENDED that plaintiff’s claims against Virga, Green and Arent be dismissed without prejudice. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, plaintiff may file written objections 13 with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 15 failure to file objections within the specified time may waive the right to appeal the District 16 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: March 22, 2017 18 19 /good2580.1amd 20 21 22 23 24 25 26 27 28 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY GOODS, 12 13 14 No. 2:14-cv-2580 TLN KJN P Plaintiff, v. NOTICE OF SUBMISSION OF DOCUMENTS JEFFERY MCCUMBER, et al., 15 Defendant. 16 17 18 Plaintiff hereby submits the following documents in compliance with the court's order filed _____________________ : 19 ____ completed summons form 20 ____ completed USM-285 forms 21 ____ copies of the ___________________ Amended Complaint 22 23 DATED: 24 25 26 ________________________________ Plaintiff 27 28 1

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