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Baker v. Walker

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 12, 2008

THESOLONIA BAKER, PLAINTIFF,
v.
J. WALKER, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. By order filed July 9, 2008, plaintiff's complaint against defendants J. Walker, I. O'Brian, D. Lytle, R. Bishop, G. Parker, N. Grannis, and the California Department of Corrections and Rehabilitation was dismissed with leave to amend. Plaintiff has filed an amended complaint against defendants R. Bishop, D. Lytle, and G. Parker.

Plaintiff's amended complaint appears to state cognizable claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). Specifically, plaintiff's complaint appears to state a cognizable retaliation claim under the First Amendment against defendants R. Bishop, D. Lytle, and G. Parker. If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. Although plaintiff also claims that defendants have violated his rights under the Equal Protection Clause, plaintiff has not alleged with any degree of particularity overt acts which these defendants engaged in that support his claim. As the court previously advised plaintiff, there must be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). Similarly, plaintiff claims in conclusory fashion that defendants have violated his rights under the California Constitution. However, plaintiff has not identified how and under what provision defendants have violated his rights. Accordingly, plaintiff may proceed on his amended complaint against defendants R. Bishop, D. Lytle, and G. Parker only on his claim that they retaliated against him in violation of the First Amendment.

Also before the court is plaintiff's request to remove the exhibits from his original complaint and attach them to his amended complaint. Good cause appearing, the court will direct the Clerk of the Court to remove the exhibits from plaintiff's original complaint and attach them to his amended complaint. See Local Rule 15-220.

Accordingly, IT IS HEREBY ORDERED that:

1. Service of the amended complaint is appropriate for the following defendants:

R. Bishop, D. Lytle, and G. Parker.

2. The Clerk of the Court is directed to remove the exhibits from plaintiff's original complaint and attach them to his amended complaint.

3. The Clerk of the Court shall send plaintiff three USM-285 forms, one summons, an instruction sheet, and a copy of the amended complaint, including the exhibits attached thereto, filed July 25, 2008.

4. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit all of the following documents to the court at the same time:

a. The completed, signed 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. Four copies of the amended complaint, including the exhibits attached thereto, filed July 25, 2008.

5. Plaintiff shall not attempt to effect service of the amended complaint on defendants or request a waiver of service of summons from any defendant. 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.

NOTICE OF SUBMISSION OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the court's order filed

one completed summons form;

three completed USM-285 forms; and four true and exact copies of the amended complaint, including the exhibits attached thereto, filed July 25, 2008.

DATED: .

Plaintiff

20080812

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