Opinion
No. 2:18-cv-3186 DB P
05-20-2019
WILLIAM JOSEPH, Plaintiff, v. E. MERAZ, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under 42 U.S.C. § 1983. Plaintiff alleges defendants subjected him to excessive force in violation of the Eighth Amendment and retaliated against him in violation of the First Amendment. In a screening order filed February 26, 2019, this court found that plaintiff stated potentially cognizable claims for excessive force against defendant Meraz and for retaliation against defendants Meraz and Smith. (ECF No. 6.) This court further found that plaintiff did not state potentially cognizable claims against the remaining defendants. Plaintiff was informed that he could proceed with the cognizable claims or amend his complaint. This court ordered plaintiff to either advise the court that he wished to proceed on the cognizable claims or file an amended complaint within thirty days. Those thirty days have passed and plaintiff has not responded to the February 26 order. ////
Based on plaintiff's failure to file an amended complaint, this court assumes plaintiff wishes to proceed on the claims against defendants Meraz and Smith found potentially cognizable. Accordingly, IT IS HEREBY ORDERED as follows:
1. Service of the complaint is appropriate for defendants Meraz and Smith;
2. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an instruction sheet and a copy of the complaint filed December 11, 2018 (ECF No. 1).
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. Three copies of the endorsed complaint filed December 11, 2018.
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 shall randomly assign a district judge to this case.
Further, IT IS RECOMMENDED, for the reasons set out in the court's order filed February 26, 2019, that defendants Carrillo, Contreras, D'Andrade, Denmark, Fehr, Graham, Hartwick, Meadows, Prince, Proffer, Shaver, Thompson, and Mendoza be dismissed from this action.
These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified //// //// time may result in waiver of the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: May 20, 2019
/s/_________
DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE DLB:9
DB/prisoner-civil rights/jose3186.1
NOTICE OF SUBMISSION
Plaintiff 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