Hart v. Young, et al

Filing 8

ORDER; FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/18/15 DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms within 30 days. Service is appropriate for S. Cervantes, Kimberlyn Young. Clerk to send pl aintiff: 1 Summons, 2 USM-285 Forms, and 1 copy of the Complaint filed on 11/20/14.Plaintiffs request for leave to proceed in forma pauperis 4 , 5 is GRANTED. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Clerk of the Court shall appoint a district judge in this action. It is RECOMMENDED that Warden Swarthout be dismissed from this action. Randomly assigned and referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD HART,

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No. 2:14-cv-2732 CKD (TEMP) P

Plaintiff,
v.

ORDER &

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KIMBERLYN YOUNG, et al,

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Defendants.

FINDINGS AND RECOMMENDATIONS

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

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§ 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
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 this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time
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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

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§ 1915(b)(2).

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The complaint states potentially-cognizable claims for relief pursuant to 42 U.S.C. § 1983

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and 28 U.S.C. § 1915A(b) against Associate Warden Kimberlyn Young and S. Cervantes. If the

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

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merits of this action. However, plaintiff has failed to plead any allegations regarding Warden

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Swarthout’s involvement in the alleged civil rights violations. Accordingly, the complaint fails to

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state a claim against Warden G. Swarthout, and he should therefore be dismissed from 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 is granted.

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

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Service is appropriate for the following defendants: Associate Warden Kimberlyn
Young and S. Cervantes.

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4. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an
instruction sheet and a copy of the complaint filed November 20, 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
d. Three copies of the endorsed complaint filed November 20, 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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7. The Clerk of the Court shall appoint a district judge in this action.

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IT IS HEREBY RECOMMENDED that Warden Swarthout be dismissed from this action.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: December 18, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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JM /hart2732.1

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD HART,

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No. 2:14-cv-2732 CKD (TEMP) P

Plaintiff,
v.

ORDER

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KIMBERLYN YOUNG, et al,

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Defendants.

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Plaintiff 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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