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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RANDY STOOPS,

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No. 2:15-CV-2439-WBS-CMK-P

Plaintiff,
vs.

ORDER

JAMES SHELTON,
Defendant.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is plaintiff’s request (Doc. 14) to be provided two

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additional USM-285 forms for service by the United States Marshal.

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This action proceeds on the first amended complaint filed following dismissal of

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the original complaint with leave to amend. The original complaint named Shelton as the only

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defendant and appeared to allege deliberate indifference to a safety risk resulting in plaintiff

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being assaulted by two other inmates. The court concluded that plaintiff’s allegations were

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insufficient to state an Eighth Amendment claim against defendant Shelton and provided plaintiff

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an opportunity to amend. Upon review of plaintiff’s amended complaint, the court concluded

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that plaintiff had alleged facts sufficient to state a claim and directed plaintiff to submit
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documents for service by the United States Marshal. Among such documents, plaintiff was

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required to submit a completed USM-285 form for defendant Shelton, which he has done.

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Plaintiff now requests two additional USM-285 forms for two additional

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defendants named in the amended complaint but not addressed in the court’s prior orders. Such

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additional defendants are Hayes and Carter. Plaintiff alleges in the amended complaint that he

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reported the assault to Hayes who assured him that he would discover the identities of his

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attackers. According to plaintiff, he was attacked again a few days later by one of the same

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inmates who had attacked him earlier. Plaintiff alleges that Hayes is responsible for the second

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attack. As to Carter, the amended complaint references attached pages that were not provided to

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the court.

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Upon further review of the amended complaint, the court concludes that service is

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also appropriate for defendant Hayes and the court will provide plaintiff an additional USM-285

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form for this defendant. The amended complaint, however, contains no allegations specific to

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Carter. Thus, the court will not provide plaintiff an additional USM-285 form for this defendant.

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Plaintiff may, at his election, file a second amended complaint containing all of his allegations

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including those against Carter which were not previously provided to the court. Or, plaintiff may

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elect to stand on the current amended complaint which appears to state claims against defendants

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Shelton and Hayes only.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s request (Doc. 14) is granted in part;

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2.

The court authorizes service on defendant HAYES;

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3.

The Clerk of the Court shall send plaintiff one USM-285 form;

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4.

Within 30 days of the date of this order, plaintiff shall:

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a.

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Submit a completed USM-285 form for defendant HAYES;
-or-

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b.

File a second amended complaint.

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DATED: June 8, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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