Opinion
No. 2:14-cv-0715 CKD P (TEMP)
01-11-2016
DAVID SEGOVIA, Plaintiff, v. STATE OF CALIFORNIA, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed December 19, 2014, plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has now filed an amended complaint.
The amended complaint states a cognizable claim under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). Specifically, plaintiff has adequately alleged deliberate indifference to a serious medical need in violation of the Eighth Amendment against defendants Peters, Convalecer and Moon. If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. As to the remaining defendants, the undersigned concludes that the first amended complaint does not cure the defects of the original complaint as set forth in the December 19, 2014 screening order. See Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010) (while the court must assume plaintiff's factual allegations are true, it is not required to accept allegations that are "merely conclusory, unwarranted deductions of fact, or unreasonable inferences.") Thus the undersigned will recommend that all defendants other than Peters, Convalecer, and Moon be dismissed from this action.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Service is appropriate for the following defendants: Peters, Convalecer and Moon.
2. The Clerk of the Court shall send plaintiff three USM-285 forms, one summons, an instruction sheet and a copy of the amended complaint filed January 16, 2015.
3. 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 each defendant listed in number 1 above; and
d. Four copies of the endorsed amended complaint filed January 16, 2015.
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 Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
5. The Clerk of the Court is directed to assign a district judge to this action.
IT IS HEREBY RECOMMENDED that:
1. All defendants other than Peters, Convalecer and Moon be dismissed from this action.
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." 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). Dated: January 11, 2016
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE hm/sego0715.1amd.new
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 __________
Complaint DATED:
/s/_________
Plaintiff