Opinion
08-21-2013
TONY ALLEN, Plaintiff, v. ANDERSON, et al., Defendants.
ORDER AND FINDINGS AND
RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se. On August 7, 2013, the court found that plaintiff's complaint states a cognizable claim for relief pursuant to the Americans with Disabilities Act (ADA) (42 U.S.C. § 12101, et seq.) and 28 U.S.C. § 1915A(b) against defendants Anderson and Stroth. On that same day, plaintiff filed an amended complaint. Good cause appearing, plaintiff's original complaint will be dismissed and this action will proceed on plaintiff's amended complaint.
Plaintiff's amended complaint states cognizable claims under the ADA and the Eighth Amendment against defendants Anderson and Stroth. Accordingly, plaintiff will be permitted to proceed on those claims. See 28 U.S.C. § 1915A. However, the court will recommend that defendant Ju be dismissed.
Plaintiff alleges that he possesses special shoes designed to help alleviate back pain. On at least three occasions, defendants Anderson and Stroth refused to allow plaintiff to wear his special shoes while plaintiff met visitors in the visiting room at his prison. Plaintiff asserts this caused him great pain. Instead of allowing plaintiff to wear his special shoes, Stroth and Anderson forced plaintiff to wear state-issued boots. Plaintiff alleges that at some point defendant Ju modified plaintiff's medical records concerning when plaintiff should be allowed to wear his special shoes. However, plaintiff fails to point to anything which reasonably suggests that Ju was involved in the decision to preclude plaintiff from wearing his special shoes while visiting, that Ju did anything which contributed to plaintiff suffering injury, or that Ju violated plaintiff's federal rights in any way. Therefore, the court will recommend that defendant Ju be dismissed.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's complaint is dismissed and this action will proceed on plaintiff's amended complaint (ECF No. 12).
2. Service of process is appropriate for defendant Stroth.
3. The Clerk of the Court shall send plaintiff a USM-285 form, summons, an instruction sheet and a copy of the amended complaint filed in this court on August 7, 2013.
4. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for defendant Stroth; and
d. Two copies of the endorsed amended complaint.
5. Plaintiff need not attempt service on defendant Stroth and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve defendant Stroth pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
6. Defendant Anderson shall file his response to plaintiff's amended complaint within 21 days of defendant Stroth's appearance in this action or when otherwise advised to do so by court order.
IT IS HERBY RECOMMENDED that defendant Ju be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
______________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
TONY ALLEN Plaintiff,
v.
ANDERSON, et al., Defendants.
No. 2:13-cv-1458 JAM CKD P
NOTICE OF SUBMISSION OF
DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed ___________________:
____ completed summons form
____ completed USM-285 forms
____ copies of the ___________
Amended Complaint
______________________
Plaintiff