Opinion
No. CIV S-06-1577 FCD KJM P.
November 1, 2007
ORDER
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed April 17, 2007, plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has now filed an amended complaint.
The amended complaint states a cognizable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of his Eighth Amendment claim of denial of medical care claim against defendant Zafra. Therefore, the court will order service of process on defendant Zafra. With respect to the other claims and defendants identified in plaintiff's amended complaint, plaintiff's amended complaint fails to state a claim upon which relief can be granted.
The court notes that on August 16, 2007, plaintiff filed a motion for a temporary restraining order asking that the court order defendant Wann to refrain from certain acts. Because the court is not ordering service of process against defendant Wann, any relief plaintiff might seek against Wann cannot be obtained in this action.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Service is appropriate for defendant Zafra.
2. The Clerk of the Court shall send plaintiff a USM-285 form, one summons, an instruction sheet and a copy of the amended complaint filed June 12, 2007.
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 endorsed amended complaint filed June 12, 2007.
4. Plaintiff need not attempt service on defendant Zafra 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 Zafra pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
5. Plaintiff's August 16, 2007 request for a temporary restraining order is denied.