Opinion
No. 2:17-cv-02584 CKD P
07-06-2018
STEVEN DAVID MICHOFF, Plaintiff, v. EL DORADO COUNTY, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
On May 31, 2018, this court screened plaintiff's complaint and found that it stated a cognizable excessive force claim as well as a state law claim for assault and battery against defendant Deputy Colburn. See ECF No. 5. In the same order, the court found that plaintiff failed to state any additional claim against defendants John Agostini, El Dorado County, and the El Dorado County Sheriff, but granted plaintiff leave to amend. Id. Plaintiff has filed a notice of election indicating that he wants to proceed immediately on his Fourth Amendment excessive force claim as well as his state law claim for assault and battery against defendant Deputy Colburn. See 42 U.S.C. § 1983; 28 U.S.C. § 1915A(b); ECF No. 7. Therefore, the court will order that plaintiff provide information to the court so that defendant Colburn can be served with process.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Service is appropriate for defendant Deputy Colburn.
2. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet and a copy of the complaint.
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. Two copies of the complaint.
4. Plaintiff need not attempt service on defendant 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 defendant pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
5. The Clerk of Court is directed to randomly assign a district court judge to this case.
IT IS FURTHER RECOMMENDED that defendants John Agostini, El Dorado County, and the El Dorado County Sheriff's Department be dismissed without prejudice for failing to state a claim upon which relief can be granted.
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). Within fourteen 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 waives the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). ///// Dated: July 6, 2018
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 12/mich2584.1+f&r.docx
NOTICE OF SUBMISSION OF DOCUMENTS
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