Miccio v. Miranda et al

Filing 19

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 03/14/18 ORDERING The Clerk of the Court is directed to assign a district judge to this case. Service is appropriate for defendants Miranda, Abdur-Rahman, Gideon and Lewis. The clerk of the court shall send plaintiff 1 summons, instruction sheet, 4 USM-285 forms and a copy of the amended complaint to be completed and returned within 30 days. Also, RECOMMENDING that defendant Kernan be dismissed. Assigned and referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARIO MICCIO,

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Plaintiff,

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No. 2:17-cv-0932 CKD P

v.

ORDER AND

MIRANDA, et al.,

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FINDINGS AND RECOMMENDATIONS
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed

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pursuant to 42 U.S.C. § 1983. Plaintiff’s first amended complaint is before the court for

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screening under 28 U.S.C. § 1915A(a). The court has conducted the required screening and finds

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that the amended complaint states claims upon which plaintiff may proceed under the Eighth

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Amendment against defendants Miranda, Abdur-Rahman, Gideon and Lewis for both damages

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and injunctive relief.

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As for defendant Kernan, the Secretary of the California Department of Corrections and

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Rehabilitation, the court will recommend that he be dismissed as there are no allegations that he

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was personally involved in any violation of civil rights, see Barren v. Harrington, 152 F.3d 1193,

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1194-95 (9th Cir. 1998) and there is no respondeat superior liability under section 1983, Taylor v.

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List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court is directed to assign a district court judge to this case.

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2. Service is appropriate for defendants Miranda, Abdur-Rahman, Gideon and Lewis.

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3. The Clerk of the Court shall send plaintiff four USM-285 forms, one summons, an

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instruction sheet and a copy of the amended complaint.

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4. 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;
and

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d. Four copies of the endorsed amended complaint.

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5. 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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6. Failure to comply with this order will result in a recommendation that this action be
dismissed without prejudice.

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IT IS HEREBY RECOMMENDED that defendant Kernan be dismissed.

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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 after

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being served with these findings and recommendations, plaintiff may file written objections with

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the court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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Dated: March 14, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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micc0932.1

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARIO MICCIO,

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No. 2:17-cv-0932 CKD P
Plaintiff,

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v.

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MIRANDA, et al.

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NOTICE OF SUBMISSION
OF DOCUMENTS
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 ___________________
Amended Complaint

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DATED:

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________________________________

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Plaintiff
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