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Mitchell v. Daviga

United States District Court, Ninth Circuit, California, E.D. California
Mar 17, 2015
1:13-cv-GSA-PC (E.D. Cal. Mar. 17, 2015)

Opinion


COREY MITCHELL, Plaintiff, v. B. DAVIGA, et al., Defendants. No. 1:13-cv-GSA-PC. United States District Court, E.D. California. March 17, 2015.

ORDER FOR THIS ACTION TO PROCEED AGAINST DEFENDANTS SHELDON AND CHAVEZ FOR FAILURE TO PROTECT PLAINTIFF, AND DISMISSING ALL OTHER CLAIMS AND DEFENDANTS FROM THIS ACTION ORDER FINDING SERVICE OF SECOND AMENDED COMPLAINT APPROPRIATE, AND FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS (Doc. 11.)

GARY S. AUSTIN, Magistrate Judge.

Corey Mitchell ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on August 21, 2013. (Doc. 1.)

On October 28, 2013, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 6.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

On January 9, 2014, Plaintiff filed the First Amended Complaint. (Doc. 9.) On June 26, 2014, the First Amended Complaint was stricken from the record by the court for lack of Plaintiff's signature, with leave to amend. (Doc. 10.) On July 14, 2014, Plaintiff filed the Second Amended Complaint. (Doc. 11.) The court screened the Second Amended Complaint pursuant to 28 U.S.C. § 1915A and entered an order on February 11, 2015, requiring Plaintiff to either file a Third Amended Complaint or notify the court that he is willing to proceed only on the claims found cognizable by the court. (Doc. 14.) On March 16, 2015, Plaintiff filed a notice informing the court that he is willing to proceed only on the cognizable claims. (Doc. 15.)

The court finds the Second Amended Complaint appropriate for service of process. Accordingly, it is HEREBY ORDERED that:

1. This case now proceeds on the Second Amended Complaint filed on July 14, 2014, against defendants Sergeant Sheldon and Correctional Officer Chavez, for failure to protect Plaintiff in violation of the Eighth Amendment;

2. All other claims and defendants are DISMISSED from this action;

3. Plaintiff's claims for improper appeals process are DISMISSED from this action based on Plaintiff's failure to state a claim under § 1983;

4. Plaintiff's claims arising from events occurring at High Desert State Prison are DISMISSED from this action for lack of venue, without prejudice to initiating new actions for these claims at the Sacramento Division of the Eastern District of California;

5. Defendants Chief Deputy Warden E. Blanco; Lieutenant P. Morales; Chief D. Foston, and Appeals Coordinators B. Daviga, S. Tallerica, R. Davis, and D. Tarnoff are DISMISSED from this action based on Plaintiff's failure to state any claims against them under § 1983;

6. Correctional Counselor L. Maldonaldo and Classification Committee Chair Williams are DISMISSED from this action due to the dismissal of the claims against them;

7. The Clerk is directed to reflect the dismissal of all defendants, except defendants Chavez and Sheldon, from this action on the court's docket;

8. Service is appropriate for the following defendants:

SERGEANT SHELDON

CORRECTIONAL OFFICER CHAVEZ

9. The Clerk of Court shall SEND Plaintiff two (2) USM-285 forms, two (2) summonses, a Notice of Submission of Documents form, an instruction sheet and a copy of the Second Amended Complaint filed on July 14, 2014 (Doc. 11);

10. 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. Completed summonses;

b. One completed USM-285 form for each defendant listed above; and

c. Three (3) copies of the endorsed Second Amended Complaint filed on July 14, 2014;

11. 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; and

12. The failure to comply with this order may result in the dismissal of this action.

IT IS SO ORDERED.

INSTRUCTIONS FOR COMPLETING FORM USM-285

After the court has issued an order granting your application to proceed without prepayment of fees and directing that service of process be made by the United States Marshal, you must complete an original USM-285 form for each individual defendant named in your action.

1. PLAINTIFF: Print your name.

2. COURT CASE NUMBER: Print the complete case number listed on your complaint.

3. DEFENDANT: Print the name of one defendant on each separate form.

4. TYPE OF PROCESS: Print "Summons and Complaint."

5. SERVE AT: Enter the name and address for service of one defendant on each individual USM-285 form.

6. SEND NOTICE OF SERVICE TO REQUESTER AT: Enter your name and mailing address.

7. NUMBER OF PROCESS TO BE SERVED WITH THIS FORM - 285: 1.

8. NUMBER OF PARTIES TO BE SERVED IN THIS CASE: Enter the number of defendants you have named in your suit.

9. CHECK FOR SERVICE ON U.S.A.: Check ONLY if the defendant listed on the form is an entity of the U.S. Government.

10. Sign and date the form, check the box marked "PLAINTIFF" and enter your telephone number (if one is available).

[] If you are the plaintiff and are currently incarcerated, you must return the completed USM-285 forms to the Clerk's Office at 2500 Tulare Street, Room 1501, Fresno, CA 93721, together with the following:

1. An original Summons for each defendant to be served;

2. A file-endorsed copy of the complaint to be served on each individual defendant;

3. One copy of the complaint for the U.S. Marshal's file.

4. The completed "Notice of Submission of Documents" form enclosed herewith.

PLEASE NOTE that only the defendants against whom the court has determined you have a cognizable claim will be served.


Summaries of

Mitchell v. Daviga

United States District Court, Ninth Circuit, California, E.D. California
Mar 17, 2015
1:13-cv-GSA-PC (E.D. Cal. Mar. 17, 2015)
Case details for

Mitchell v. Daviga

Case Details

Full title:COREY MITCHELL, Plaintiff, v. B. DAVIGA, et al., Defendants.

Court:United States District Court, Ninth Circuit, California, E.D. California

Date published: Mar 17, 2015

Citations

1:13-cv-GSA-PC (E.D. Cal. Mar. 17, 2015)