Shufelt v. Miranda et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/19/18 ORDERING plaintiff's motion for leave to amend is granted. Plaintiff's original complaint is dismissed. Service is appropriate for defendants Griffith and Miranda. The clerk of the court shall send plaintiff 2 USM-285 forms, 1 summons, instruction sheet and a copy of the amended complaint to be completed and returned within 30 days. The clerk of the court shall assign a district court ju dge to this case. Defendant Abdur-Rahman shall file a responsive pleading within 30 days. Also, RECOMMENDING that all defendants other than defendants Griffith, Miranda and Abdur-Rahman be dismissed; and all claims other than plaintiff's Eighth Amendment claims against defendants Griffith, Miranda and Abdur-Rahman be dismissed. Assigned and referred to Judge William B. Shubb. 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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GEORGE W. SHUFELT,
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Plaintiff,
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No. 2:17-cv-1014 CKD P
v.
ORDER AND
RAFAEL 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. On January 2, 2018, plaintiff filed an amended complaint. In the
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spirit of Federal Rule of Civil Procedure 15(a)(1), which generally permits plaintiffs to amend a
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complaint once as a matter of course in the early stages of the case, the court will grant plaintiff
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leave to amend and screen plaintiff’s amended complaint as the court is required to do under 28
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U.S.C. § 1915A(a).
The court has conducted the required screening and finds that the amended complaint
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states claims upon which plaintiff may proceed under the Eighth Amendment against defendants
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Griffith, Miranda and Abdur-Rahman for denial or delay of medical treatment.
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As for the other claims and defendants identified in plaintiff’s amended complaint,
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plaintiff’s amended complaint fails to state claims upon which relief can be granted.1
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s motion for leave to amend is granted.
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2. Plaintiff’s original complaint is dismissed.
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3. Service is appropriate for defendants Griffith and Miranda.2
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4. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an
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instruction sheet and a copy of the amended complaint.
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5. 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 3 above;
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and
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d. Three copies of the endorsed amended complaint.
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6. Plaintiff need not attempt service on any defendant and need not request waiver of
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service. Upon receipt of the above-described documents, the court will direct the United States
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Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4
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without payment of costs.
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7. The Clerk of the Court assign a district court judge to this case.
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8. Defendant Abdur-Rahman shall file a responsive pleading within 30 days.
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With respect to claims asserted under California law, plaintiff has not adequately pled
compliance with the terms of the California Tort Claims Act. See Cal. Gov’t Code § 910 et seq.;
Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Complaints must
present facts demonstrating compliance, rather than simply conclusions suggesting as much.
Shirk v. Vista Unified School Dist., 42 Cal.4th 201, 209 (2007).
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Defendant Abdur-Rahman appeared in this action on February 20, 2018. ECF No. 20.
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IT IS HEREBY RECOMMENDED that:
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1. All defendants other than defendants Griffith, Miranda and Abdur-Rahman be
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dismissed; and
2. All claims other than plaintiff’s Eighth Amendment claims against defendants Griffith,
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Miranda and Abdur-Rahman 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: April 19, 2018
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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GEORGE W. SHUFELT,
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No. 2:17-cv-1014 CKD P
Plaintiff,
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NOTICE OF SUBMISSION
RAFAEL MIRANDA, et al.,
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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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