Franks v. Kelso et al

Filing 7

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/18/17 GRANTING 3 Motion to Proceed IFP. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be collected in accordance with the court's CDC order filed concurrently herewith. Service is appropriate for defendant Giddings relative to claims 2 and 3 in plaintiff's complaint. The clerk of the court shall send plaintiff 1 USM-285 form, 1 summons , instruction sheet and a copy of the complaint to be completed and returned within 30 days. Also, RECOMMENDING that claim 1 and all defendants other than defendant Giddings be dismissed. Referred to Judge Garland E. Burrell. 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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TOM MARK FRANKS,

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No. 2:17-cv-1056 GEB CKD P

Plaintiff,
v.

ORDER AND

J. CLARK KELSO, et al.,

FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §
1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect

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twenty percent of the preceding month’s income credited to plaintiff’s prison trust account and

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forward it to the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00,

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until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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The court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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Plaintiff identifies three claims in his complaint. As for claims 2 and 3, plaintiff states

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claims upon which he may proceed under the Eighth Amendment against defendant Giddings.

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Claim1 is not a claim upon which plaintiff may proceed as, at most, the claim amounts to

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negligence in violation of California law. Plaintiff may only proceed on a claim arising under

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California law if he pleads compliance with California=s Government Claims Act which plaintiff

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has not done. California v. Sup. Court of Kings County, 32 Cal.4th 1234, 1241-42 (2004).1

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Plaintiff identifies J. Clark Kelso, Federal Receiver, and M. Spearman, Warden at High

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Desert State Prison as defendants, but fails to make any allegations against them. Accordingly,

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the court will recommend that they be dismissed.

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

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 3) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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California Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Service is appropriate for defendant Giddings relative to claims 2 and 3 in plaintiff’s
complaint.

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4. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an

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instruction sheet and a copy of the complaint.

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Plaintiff asserts with respect to claim 1 that he “filed a Government Claim Form with California
that was not answered.” This is not sufficient as a plaintiff must at least allege facts
demonstrating he is excused from complying with the Government Claims Act, not simply allege
that he made a single attempt to comply. California v. Sup. Court of Kings County, 32 Cal.4th at
1241-42.
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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; and

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d. Two copies of the complaint.

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6. Plaintiff need not attempt service on defendant Giddings and need not request waiver

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of service. Upon receipt of the above-described documents, the court will direct the United States

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Marshal to serve defendant Giddings pursuant to Federal Rule of Civil Procedure 4 without

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payment of costs.

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IT IS HEREBY RECOMMENDED that Claim 1 and all defendants other than defendant
Giddings 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 days 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: October 18, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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frank1056.1

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TOM MARK FRANKS,

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No. 2:17-cv-1056 GEB CKD P

Plaintiff,
v.

NOTICE OF SUBMISSION

J. CLARK KELSO, et al.,

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OF DOCUMENTS

Defendants.

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Plaintiff 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 ___________________
Complaint

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DATED:

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____________________
Plaintiff

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_______________________________

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