Owens v. Rapoport

Filing 20

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/26/2017 ORDERING service is appropriate for Elena Rapoport and Tim V. Virga. The Clerk shall send plaintiff forms for service to be completed and returned within 30 days, along with the Notice of Submission. IT IS RECOMMENDED that defendant Swartz be dismissed from this action with prejudice. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THEON OWENS, 12 13 14 15 No. 2:16-cv-00273 TLN CKD P Plaintiff, v. ORDER & ELENA RAPOPORT, et al., FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed 18 pursuant to 42 U.S.C. § 1983. On August 15, 2016, the undersigned issued a screening order 19 detailing the alleged events that are the subject of this action and concluding that plaintiff stated 20 federal claims against defendants Rapoport and Virga. (ECF No. 13.) However, plaintiff was 21 granted leave to amend in order to cure certain deficiencies in the complaint. (Id.) 22 Before the court for screening is plaintiff’s second amended complaint (“SAC”). (ECF 23 No. 18.) The SAC states cognizable claims under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). 24 Specifically, plaintiff states a cognizable claim under the Fourth Amendment Due Process Clause 25 against Rapoport for causing plaintiff to be subject to involuntary medication between September 26 24, 2012 and November 28, 2012, absent the conditions necessary for such treatment. (See ECF 27 No. 13 at 4-5.) Plaintiff also states a claim against Virga for a retaliatory prison transfer in 28 violation of the First Amendment. (See ECF No. 13 at 5.) 1 1 As to defendant Swartz, who reviewed plaintiff’s administrative grievance on the 2 medication issue, plaintiff asserts this defendant falsified records in order to cover for Rapoport. 3 (SAC, ¶¶ 75-78.) While the court must assume that plaintiff's factual allegations are true, it is not 4 required to accept as true allegations that contradict exhibits attached to the complaint or 5 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 6 inferences. Daniels–Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). As 7 plaintiff’s conclusory allegations that Swartz falsified records do not state a federal claim, the 8 undersigned will recommend that this defendant be dismissed with prejudice. 9 In accordance with the above, IT IS HEREBY ORDERED that: 10 1. Service is appropriate for the following defendants: Rapoport and Virga. 11 2. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an 12 instruction sheet and a copy of the amended complaint filed November 10, 2016. 13 3. Within thirty days from the date of this order, plaintiff shall complete the attached 14 Notice of Submission of Documents and submit the following documents to the court: 15 a. The completed Notice of Submission of Documents; 16 b. One completed summons; 17 c. One completed USM-285 form for each defendant listed in number 1 above; 18 and 19 d. Three copies of the endorsed amended complaint filed November 10, 2016. 20 4. Plaintiff need not attempt service on defendants and need not request waiver of service. 21 Upon receipt of the above-described documents, the court will direct the United States Marshal to 22 serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment 23 of costs. 24 25 IT IS HEREBY RECOMMENDED that defendant Swartz be dismissed from this action with prejudice. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 28 after being served with these findings and recommendations, plaintiff may file written objections 2 1 with the court. Such a document should be captioned “Objections to Magistrate Judge's Findings 2 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 3 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 4 (9th Cir. 1991). 5 Dated: January 26, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 6 7 8 9 2 / owen0273.1amd.new 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THEON OWENS, 12 13 14 No. 2:16-cv-0273 TLN CKD P Plaintiff, v. NOTICE OF SUBMISSION OF DOCUMENTS ELENA RAPOPORT, et al., 15 Defendants. 16 17 18 Plaintiff hereby submits the following documents in compliance with the court's order filed _____________________ : 19 ____ completed summons form 20 ____ completed USM-285 forms 21 ____ copies of the ___________________ Complaint 22 23 DATED: 24 25 26 27 ________________________________ 28 Plaintiff 4

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