Adler v. McDonald et al

Filing 7

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/3/15 ORDERING that service is appropriate for Anderson. Clerk to send plaintiff: 1 Summons, 1 USM-285 Form, and 1 copy of the Amended Complaint filed on 7/2/15. The Clerk of Court is directed to assign a district judge to this action. It is RECOMMENDED that ll defendants except Anderson be dismissed from this action with prejudice. Randomly assigned and referred to Judge Troy L. Nunley; 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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BRENT ADLER,

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Plaintiff,

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No. 2:15-cv-0789 CKD P

v.

ORDER AND

M. D. McDONALD, et al.,

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FINDINGS & RECOMMENDATIONS

Defendants.

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Plaintiff is a state prisoner proceeding pro se with an action filed pursuant to 42 U.S.C.

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§1983. Before the court for screening is plaintiff’s first amended complaint (“FAC”). (ECF No.

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6.)

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The amended complaint states a cognizable Eighth Amendment claim under 42 U.S.C.

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§1983 and 28 U.S.C. § 1915A(b) against defendant Anderson. See Cockcroft v. Kirkland, 548 F.

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Supp. 2d 767, 774- 775 (N.D. Cal. 2008) (collecting cases on unsanitary prison conditions).

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

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prevail on the merits of this action.

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As to the remaining six defendants, the undersigned concludes that the FAC does not cure

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the defects of the original complaint as set forth in the May 28, 2015 screening order. See

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Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (while the court must

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assume plaintiff’s factual allegations are true, it is not required to accept allegations that are
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“merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”) Thus the

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undersigned will recommend that all defendants but Anderson be dismissed from this action.

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

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1. Service is appropriate for the following defendant: Anderson.

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2. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an

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instruction sheet and a copy of the amended complaint filed July 2, 2015.

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3. 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 1 above;

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and

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d. Two copies of the endorsed amended complaint filed July 2, 2015.

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4. 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 the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment

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of costs.

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5. The Clerk of Court is directed to assign a district judge to this action.

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IT IS HEREBY RECOMMENDED THAT all defendants except Anderson be dismissed

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from this action with prejudice.

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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, plaintiff may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge's Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: August 3, 2015

_____________________________________
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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BRENT ADLER,

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No. 2:15-cv-0789 CKD P
Plaintiff,

v.

NOTICE OF SUBMISSION OF
DOCUMENTS

M. D. McDONALD, et al.,

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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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