Stoops v. Shelton

Filing 15

ORDER signed by Magistrate Judge Craig M. Kellison on 06/08/17 ordering plaintiff's request 14 is granted in part. The court authorizes service on defendant Hayes. The clerk of the court shall send plaintiff 1 USM-285 form. Within 30 days of the date of this order, plaintiff shall a. submit a completed USM-285 form for defendant Hayes or b. file a second amended complaint. (Plummer, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RANDY STOOPS, 12 13 14 15 16 No. 2:15-CV-2439-WBS-CMK-P Plaintiff, vs. ORDER JAMES SHELTON, Defendant. / 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court is plaintiff’s request (Doc. 14) to be provided two 19 additional USM-285 forms for service by the United States Marshal. 20 This action proceeds on the first amended complaint filed following dismissal of 21 the original complaint with leave to amend. The original complaint named Shelton as the only 22 defendant and appeared to allege deliberate indifference to a safety risk resulting in plaintiff 23 being assaulted by two other inmates. The court concluded that plaintiff’s allegations were 24 insufficient to state an Eighth Amendment claim against defendant Shelton and provided plaintiff 25 an opportunity to amend. Upon review of plaintiff’s amended complaint, the court concluded 26 that plaintiff had alleged facts sufficient to state a claim and directed plaintiff to submit 1 1 documents for service by the United States Marshal. Among such documents, plaintiff was 2 required to submit a completed USM-285 form for defendant Shelton, which he has done. 3 Plaintiff now requests two additional USM-285 forms for two additional 4 defendants named in the amended complaint but not addressed in the court’s prior orders. Such 5 additional defendants are Hayes and Carter. Plaintiff alleges in the amended complaint that he 6 reported the assault to Hayes who assured him that he would discover the identities of his 7 attackers. According to plaintiff, he was attacked again a few days later by one of the same 8 inmates who had attacked him earlier. Plaintiff alleges that Hayes is responsible for the second 9 attack. As to Carter, the amended complaint references attached pages that were not provided to 10 the court. 11 Upon further review of the amended complaint, the court concludes that service is 12 also appropriate for defendant Hayes and the court will provide plaintiff an additional USM-285 13 form for this defendant. The amended complaint, however, contains no allegations specific to 14 Carter. Thus, the court will not provide plaintiff an additional USM-285 form for this defendant. 15 Plaintiff may, at his election, file a second amended complaint containing all of his allegations 16 including those against Carter which were not previously provided to the court. Or, plaintiff may 17 elect to stand on the current amended complaint which appears to state claims against defendants 18 Shelton and Hayes only. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s request (Doc. 14) is granted in part; 3 2. The court authorizes service on defendant HAYES; 4 3. The Clerk of the Court shall send plaintiff one USM-285 form; 5 4. Within 30 days of the date of this order, plaintiff shall: 6 a. 7 Submit a completed USM-285 form for defendant HAYES; -or- 8 b. File a second amended complaint. 9 10 11 12 DATED: June 8, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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