Heilman v. Whitten, et al

Filing 12

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/25/2016 ORDERING service is appropriate for M. Dooley, E. Mendonsa, A. Whitten; and the Clerk shall send plaintiff forms for service to be completed and return ed within 30 days, along with the Notice of Submission. IT IS RECOMMENDED that all defendants and claims be dismissed from this action except First Amendment retaliation claims against defendants Whitten, Dooley and Mendosa. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS JOHN HEILMAN,

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No. 2:15-cv-1585 MCE CKD P

Plaintiff,
v.

ORDER AND

A. WHITTEN, et al.,

FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, who seeks relief

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pursuant to 42 U.S.C. § 1983. On September 25, 2015, plaintiff’s original complaint was

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dismissed for failure to state a claim. (ECF No. 6.) Plaintiff has filed a first amended complaint

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(FAC), now before the court for screening. (ECF No. 11.) See 28 U.S.C. § 1915A(a).

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Construing the FAC in the light most favorable to plaintiff, the undersigned concludes that

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it states a First Amendment retaliation claim against defendants Whitten, Dooley, and Mendosa.

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As to plaintiff’s access-to-courts claim, the FAC fails to cure the defects of the original complaint

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as set forth in the September 25, 2015 screening order.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Service is appropriate for the following defendants: Whitten, Dooley, and Mendosa.

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2. The Clerk of the Court shall send plaintiff three USM-285 forms, one summons, an
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instruction sheet and a copy of the amended complaint filed November 2, 2015.
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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d. Four copies of the endorsed amended complaint filed November 2, 2015.

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4. 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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IT IS HEREBY RECOMMENDED that all defendants and claims be dismissed from this

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action except First Amendment retaliation claims against defendants Whitten, Dooley, and

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Mendosa.

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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: January 25, 2016

_____________________________________
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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THOMAS JOHN HEILMAN,

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No. 2:15-cv-1585 MCE CKD P

Plaintiff,
v.

NOTICE OF SUBMISSION OF
DOCUMENTS

A. WHITTEN, 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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