Opinion
Case No.: 1:12-cv-00905-AWI-JLT (PC)
05-08-2013
MATTHEW VINCENT SALINAS, Plaintiff, v. D. COLEMAN, et. al, Defendants.
AMENDED FINDINGS AND
RECOMMENDATION DISMISSING
CERTAIN DEFENDANTS
(Docs. 10, 12 and 13)
AMENDED ORDER FINDING SERVICE OF
THE COMPLAINT APPROPRIATE AND
FORWARDING SERVICE DOCUMENTS TO
PLAINTIFF FOR COMPLETION WITHIN
THIRTY DAYS
(Docs. 10, 12, and 13).
Plaintiff Matthew Vincent Salinas ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his first amended complaint on October 18, 2012. (Doc. 10). The Court screened the complaint pursuant to 28 U.S.C. § 1915A(a) on April 15, 2013. (Doc. 12). The Court found the complaint stated a cognizable Eighth Amendment claim against Defendant Green and dismissed Plaintiff's claims as to Defendants Reyes, Coleman, Baniga, and the California Department of Corrections and Rehabilitation ("CDCR"). Id. at 12. The Court also dismissed Plaintiff's California medical malpractice claim against Defendant Green. Id. Plaintiff was ordered to notify the Court in writing whether he wished to proceed on his cognizable claim or file a second amended complaint to address the deficiencies outlined by the Court. Id.
Plaintiff timely filed his response with the Court on May 3, 2013. (Doc. 13.) Plaintiff indicates he wishes to proceed on his cognizable Eighth Amendment claim as to Defendant Green. Id. In addition, Plaintiff requests dismissal of his claims against Defendants Reyes, Coleman, Baniga and the CDCR and his medical malpractice claim against Defendant Green. Id.
Therefore, service of Plaintiff's Eighth Amendment claim only is appropriate for Defendant Green. Given that Plaintiff declined to consent to the jurisdiction of the Magistrate Judge, (Doc. 5), the Magistrate Judge finds that DISMISSAL of Plaintiff's claims again Defendants Reyes, Coleman, Baniga and the CDCR, and his California medical malpractice claim against Defendant Green is appropriate.
ORDER
Accordingly, it is HEREBY ORDERED that:
1. Service of Plaintiff's Eighth Amendment claim only as to Defendant Green shall be initiated;
2. The Clerk of the Court shall send Plaintiff one (1) USM-285 form, one (1) summons, one (1) Notice of Submission of Documents form, an instruction sheet, and a copy of the endorsed first amended complaint filed on October 18, 2012. (Doc. 10);
3. Within thirty (30) days from the date of this order, Plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the Court with the following documents:
a. One completed USM-285 form for each defendant listed above;
b. One completed summon for each defendant listed above; and
c. Two (2) copies of the endorsed complaint;
4. Plaintiff need not attempt service on Defendants and need not request waiver of service. Upon receipt of the above-described documents, the Court will direct the United States Marshall to serve Defendant pursuant to Fed. R. Civ. P. 4 without payment of costs; and
5. Plaintiff is cautioned that failure to comply with this order will result in the dismissal of this action.
RECOMMENDATION
Accordingly, the Court RECOMMENDS:
1. the matter be DISMISSED as to Defendants Reyes, Coleman, Baniga and the CDCR;
2. the matter be DISMISSED as to the state law medical malpractice claim (Claim VI) against Defendant Green.
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)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within 14 days after being served with these findings and recommendations, Plaintiff may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised 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). IT IS SO ORDERED.
Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE