Opinion
No. 2:14-cv-2843 DAD P
10-29-2015
THOMAS JOHN CARLSON, Plaintiff, v. B. DUFFY et al., Defendants.
ORDER
Plaintiff is a state prisoner proceeding pro se. He commenced this action in the Solano County Superior Court. Defendants Duffy, Swarthout, Matteson, Langston, Tileston, Hill, and Quint properly removed the action to this court pursuant to 28 U.S.C. § 1441(b). Defendants have paid the filing fee, and they request the court screen the complaint under 28 U.S.C. § 1915.
Although plaintiff is not responsible for paying the filing fee, plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the court will grant his motion to proceed in forma pauperis.
By granting plaintiff in forma pauperis status, the court can order the United States Marshal to serve process upon any unserved defendant on plaintiff's behalf. Otherwise, pursuant to Rule 4 of the Federal Rules of Civil Procedure, plaintiff would be required to complete service of process upon any unserved defendants himself. --------
PLAINTIFF'S COMPLAINT
When plaintiff commenced this action in the Solano County Superior Court, he identified Duffy, Swarthout, Matteson, Langston, Tileston, Hill, Quint, and others as the defendants in this action. Since defendants removed this action to federal court, however, plaintiff has filed a first amended complaint and a second amended complaint with this court. Although plaintiff asserts the same claim concerning the purported illegal removal of his Veterans Disability Benefits in his amended complaints, plaintiff now identifies individuals Worth, Newton, Rodriguez, Vega, Monroy, Abraham, Alvarado, Chan, Villa, Angulo, and Madrid as the defendants in this action. For reasons unclear to the court, all of the defendants named in plaintiff's amended complaints are different from those named in the complaint he filed in the Solano County Superior Court. The named defendants also appear to be employed at Pleasant Valley State Prison.
Before this court will proceed in this action, the court will direct plaintiff to file a third amended complaint. In his third amended complaint, plaintiff must identify all of the defendants with their position and place of employment in the caption of his pleading and in the section of the form complaint designated for that purpose. In addition, in the section of the form complaint in which the plaintiff is required to set forth a brief statement of the facts of the case, he must describe how each of the named defendants have deprived him of his constitutional or federal statutory rights. Plaintiff should state what constitutional or federal statutory right he believes each defendant has violated and support each such claim with factual allegations about each defendant's actions.
Insofar as plaintiff wishes to pursue a claim against defendants at California State Prison, Solano or California Medical Facility, he may proceed in this action. However, if plaintiff wishes to proceed against defendants at Pleasant Valley State Prison, he must file a separate civil rights action in the Fresno Division of this court where venue is appropriate with respect to any potential claims against defendants at Pleasant Valley State Prison.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's requests to proceed in forma pauperis (Doc. Nos. 9 & 11) are granted.
2. Defendants' request that the court screen plaintiff's complaint (Doc. No. 1) is granted.
3. Plaintiff is granted thirty days from the date of service of this order to file a third amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned to this case and must be labeled "Third Amended Complaint"; failure to file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed without prejudice. Alternatively, plaintiff may move to voluntarily dismiss this action without prejudice.
4. The Clerk of the Court is directed to send plaintiff the court's form for filing a civil rights action. Dated: October 29, 2015
/s/_________
DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE
DAD:9
carl2843.14a