Puckett v. Sweis, et al

Filing 35

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 1/30/2018 GRANTING 32 Request for Clarification; VACATING ECF No. 25 at 7 the dismissal of the retaliation claim against defendant Gomez; DIRECTING Plaintiff to Submit Service Documents and USM-285 Forms; and RECOMMENDING the retaliation claim against defendant Gomez be dismissed without leave to amend for the reasons set forth in ECF No. 25 at 2-3. Service is appropriate for Gomez and he will be require d to respond to 17 First Amended Complaint as set forth in Section III.A.2 of 25 Screening Order. Clerk to send plaintiff: 1 Summons, 1 USM-285 Form with instruction sheet, and 1 copy of the Amended Complaint filed on 2/29/2016. Plaintiff to complete and submit the service documents with the Notice of Submission of Documents within 30 days from the date of this order. Referred to Judge Troy L. Nunley. Objections due within 21 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DURRELL ANTHONY PUCKETT,

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No. 2:15-cv-0602 TLN AC P

Plaintiff,

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v.

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S. SWEIS, et al.,

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ORDER AND FINDINGS AND
RECOMMENDATIONS
Defendants.

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Defendants Bivens, Bracho, Compton, Forester, Lightfield, Ramussen, and Sweis request

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clarification of the September 29, 2017 screening order (ECF No. 25). ECF No. 32. Defendants

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correctly point out that while the order dismissed the retaliation claims against Gomez, it failed to

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order service on the failure to protect claim, even though it was found to be viable. Id. They seek

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clarification as to whether Gomez remains a defendant. Id. The motion will be granted.

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As set forth in the September 29, 2017 screening order, plaintiff alleged sufficient facts to

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state a claim for failure to protect against defendant Gomez. ECF No. 25 at 3-4. Defendant

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Gomez will therefore be required to respond to that portion of the complaint and the court will

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order service. Moreover, in light of the Ninth Circuit’s recent decision in Williams v. King, 875

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F.3d 500 (9th Cir. 2017), the dismissal of the retaliation claim against Gomez is vacated and for

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the reasons outlined in the September 29, 2017 screening order, the undersigned will recommend

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to the assigned District Judge that the retaliation claim against defendant Gomez be dismissed
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without leave to amend.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ request for clarification (ECF No. 32) is granted.

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2. The dismissal of the retaliation claim against defendant Gomez (ECF No. 25 at 7) is

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vacated.
3. Service is appropriate for defendant Gomez and he will be required to respond to the

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first amended complaint as set forth in Section III.A.2 of the September 29, 2017 screening order

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(ECF No. 25).

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4. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an
instruction sheet, and a copy of the first amended complaint (ECF No. 17).
5. 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 defendant Gomez; and

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d. Two copies of the endorsed first amended complaint.

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6. Plaintiff need not attempt service on defendant 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 defendant Gomez pursuant to Federal Rule of Civil Procedure 4 without payment of costs.

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IT IS FURTHER RECOMMENDED that the retaliation claim against defendant Gomez

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be dismissed without leave to amend for the reasons set forth in the September 29, 2017 screening

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order (ECF No. 25 at 2-3).

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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 twenty-one 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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IT IS SO ORDERED
DATED: January 30, 2018

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DURRELL ANTHONY PUCKETT,

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No. 2:15-cv-0602 TLN AC P

Plaintiff,
v.

NOTICE OF SUBMISSION OF
DOCUMENTS

S. SWEIS, 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 form USM-285

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completed summons form

copies of the first amended complaint

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DATED:

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________________________________
Plaintiff

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