Thomas v. Bick et al

Filing 22

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/7/2017 ORDERING service is appropriate for J. Bick and B. Dhillon. 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 all defendants other than Bick and Dhillon be dismissed. 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 JOSH THOMAS, 12 Plaintiff, 13 14 No. 2:16-cv-1425 TLN CKD P v. ORDER AND J. BICK, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 17 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(b)(1). Before the court for screening is plaintiff’s first amended complaint. The amended 20 21 complaint states a cognizable claim under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the 22 allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail 23 on the merits of his Eighth Amendment claims against defendant Doctors Bick and Dhillon 24 concerning treatment for “Valley Fever.” As for the remainder of plaintiff’s claims, plaintiff either fails to state a claim upon which 25 26 27 28 relief can be granted,1 or has improperly joined claims against other defendants.2 1 Defendant asserts defendants Ditomas, Clark and Lewis denied prisoner grievances concerning the treatment of Bick and Dhillon. But plaintiff fails to point to facts indicating that anyone 1 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Service is appropriate for defendants Bick and Dhillon. 3 2. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an 4 instruction sheet and a copy of the amended complaint. 5 3. Within thirty days from the date of this order, plaintiff shall complete the attached 6 Notice of Submission of Documents and submit the following documents to the court: 7 a. The completed Notice of Submission of Documents; 8 b. One completed summons; 9 c. One completed USM-285 form for each defendant listed in number 1 above; 10 and 11 d. Three copies of the endorsed amended complaint. 12 4. Plaintiff need not attempt service on defendants and need not request waiver of service. 13 Upon receipt of the above-described documents, the court will direct the United States Marshal to 14 serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment 15 of costs. 16 17 IT IS HEREBY RECOMMENDED that that all defendants other than Bick and Dhillon be dismissed. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 23 24 25 26 27 reviewing plaintiff’s grievances had the authority to change the treatment prescribed by Dr. Bick or Dr. Dhillon. Plaintiff also fails to allege sufficient facts suggesting he suffered actionable injury as a result of, at least, the deliberate indifference of the defendants reviewing grievances. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). 2 As a general rule, plaintiff may include as many claims as he likes with respect to one defendant in one action. However, claims against additional defendants in the same action must arise out of the “same transaction, occurrence or series of transactions or occurrences.” Fed. R. Civ. P. 20(a)(2)(A). Plaintiff was informed of this when the court dismissed his original complaint with leave to amend. 28 2 1 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 2 objections shall be served and filed within fourteen days after service of the objections. The 3 parties are advised that failure to file objections within the specified time may waive the right to 4 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 Dated: December 7, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 1 thom1425.1 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 JOSH THOMAS, 12 13 14 No. 2:16-cv-1425 TLN CKD P Plaintiff, v. NOTICE OF SUBMISSION OF J. BICK, et al., 15 DOCUMENTS 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 ___________________ Amended Complaint 22 23 DATED: 24 25 26 ________________________________ 27 Plaintiff 28 4

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