Opinion
No. CIV S-09-998 JAM KJM P.
November 24, 2009
ORDER
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. Plaintiff alleges that the defendants took a number of actions against him, all in retaliation for his grievances and complaints about conditions in CSP-Folsom's B-Facility. Specifically, he alleges that: (1) on January 24, 2001, defendant Adcock filed a false rules violation report against him; this report was endorsed by defendants Sims, Schievelbein and Hill around the same date; (2) on January 29, 2001, defendant Adcock filed another false incident report, which was endorsed by defendants Rosario, Schievelbein, Hill and Sims; on January 24, 2001, defendants Sims, Schievelbein and Hill refused to pack plaintiff's legal property and broke plaintiff's color television; (3) on January 31, 2001, defendants Schievelbein, Goghnour and Sanders relied on defendant Adcock's falsified reports in removing plaintiff from B-Facility, from his work group and Level III status; (4) on or about February 22 and March 1, 2001, defendants Stockton and Padovan violated plaintiff's rights to present exculpatory evidence and to a fair hearing on the falsified rules violation report, and (5) between May 13, 2001 and January 22, 2002, defendants Scarsella, Bunnell and Rianda denied plaintiff's grievances stemming from Adcock's false reports. Plaintiff further alleges that his administrative grievances were exhausted on January 22, 2002.
This court found that all of the above claims were barred by the statute of limitations, which, it calculated, expired in January 2006. Docket No. 11. Plaintiff has now filed objections, noting that his allegations against several of the defendants were included in amended complaints in Cohea v. Pliler, Civ. No. S-00-2799 FCD EFB, which were dismissed because the claims had not been exhausted before the initial action (as opposed to the amended complaints raising them) was filed. Civ. No. S-00-2799, Docket No. 11 (allegations against Scogin, Flory, Kelly and Adcock); Docket No. 174 (Flory, Hill, Kelly, Saunders, Scogin, Sims and White).
Without necessarily finding that plaintiff has satisfied the statute of limitations, the court will vacate its earlier findings and recommendations and order the complaint served as to the retaliation claims identified in the first paragraph above.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed March 13, 2009 (docket no. 11) are hereby vacated.
2. Service of the retaliation claims is appropriate for the following defendants: Adcock, Sims, Schievelbein, Hill, Rosario, Sims, Scogin, Flory, Kelly, Goghnour, Sanders, Stockton, Padovan, Scarsella, Bunnell and Rianda.
3. The Clerk of the Court shall send plaintiff sixteen USM-285 forms, one summons, an instruction sheet and a copy of the complaint filed April 13, 2009.
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 each defendant listed in number 2 above; and
d. Seventeen copies of the endorsed complaint filed April 13, 2009.
5. 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.