Opinion
No. 2:17-cv-1014 CKD P
04-19-2018
GEORGE W. SHUFELT, Plaintiff, v. RAFAEL MIRANDA, 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. On January 2, 2018, plaintiff filed an amended complaint. In the spirit of Federal Rule of Civil Procedure 15(a)(1), which generally permits plaintiffs to amend a complaint once as a matter of course in the early stages of the case, the court will grant plaintiff leave to amend and screen plaintiff's amended complaint as the court is required to do under 28 U.S.C. § 1915A(a).
The court has conducted the required screening and finds that the amended complaint states claims upon which plaintiff may proceed under the Eighth Amendment against defendants Griffith, Miranda and Abdur-Rahman for denial or delay of medical treatment. ///// ///// /////
As for the other claims and defendants identified in plaintiff's amended complaint, plaintiff's amended complaint fails to state claims upon which relief can be granted.
With respect to claims asserted under California law, plaintiff has not adequately pled compliance with the terms of the California Tort Claims Act. See Cal. Gov't Code § 910 et seq.; Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Complaints must present facts demonstrating compliance, rather than simply conclusions suggesting as much. Shirk v. Vista Unified School Dist., 42 Cal.4th 201, 209 (2007).
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for leave to amend is granted.
2. Plaintiff's original complaint is dismissed.
3. Service is appropriate for defendants Griffith and Miranda.
Defendant Abdur-Rahman appeared in this action on February 20, 2018. ECF No. 20.
4. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an instruction sheet and a copy of the amended complaint.
5. 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 3 above; and
d. Three copies of the endorsed amended complaint.
6. Plaintiff need not attempt service on any 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 defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
7. The Clerk of the Court assign a district court judge to this case.
8. Defendant Abdur-Rahman shall file a responsive pleading within 30 days. ///// /////
IT IS HEREBY RECOMMENDED that:
1. All defendants other than defendants Griffith, Miranda and Abdur-Rahman be dismissed; and
2. All claims other than plaintiff's Eighth Amendment claims against defendants Griffith, Miranda and Abdur-Rahman 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)(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: April 19, 2018
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 1
shuf1014.1
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