Opinion
No. 2:15-cv-1115 CKD P
03-15-2016
TELESFORO QUINTANILLA, Plaintiff, v. SISKIYOU CONTY JAIL, 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. Plaintiff's third amended complaint is before the court for screening pursuant to 28 U.S.C. § 1915A(a). The court has conducted the required screening and finds that the third amended complaint states a claim upon which plaintiff may proceed under the Eighth Amendment for denial of medical care against defendant Kolpakov. With respect to the other claims and defendants identified in plaintiff's third amended complaint, plaintiff has failed to allege facts which amount to actionable claims arising under the Constitution or other federal law.
Plaintiff does allege facts suggesting he may have a claim for negligence under California law concerning plaintiff's slipping and falling on a wet floor. However, plaintiff has failed to plead compliance with the California Tort Claims Act, which he must do to proceed on claims arising under California law in this court. State v. Superior Court, 32 Cal. 4th, 1234, 1239 (2004). As to other claims and defendants, plaintiff has twice been advised of the deficiencies in his allegations. See ECF Nos. 9 and 12.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Service is appropriate for defendant Kolpakov.
2. The Clerk of the Court shall send plaintiff a USM-285 form, summons, an instruction sheet and a copy of the third amended 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; and
d. Two copies of the third amended complaint.
4. Plaintiff need not attempt service on defendant Kolpakov and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve defendant Kalpakov pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
5. The Clerk of the Court shall assign a district court judge to this case.
IT IS HEREBY RECOMMENDED that all defendants other than defendant Kolpakov be dismissed.
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, 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 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: March 15, 2016
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 1/quin1115.1
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 __________
Amended Complaint DATED:
/s/_________
Plaintiff