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Miller v. California Dep't of Corrections

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


September 8, 2008

ERNEST MILLER, PLAINTIFF,
v.
CALIFORNIA DEP'T OF CORRECTIONS, 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 December 11, 2007, plaintiff's amended complaint was dismissed with leave to amend. Plaintiff has filed his second amended complaint.

Plaintiff's second amended complaint appears to state cognizable claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the second amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action as to defendants Harmon, Walker and Essman. However, plaintiff has still not provided sufficient factual allegations concerning defendants Weston, Nelson, and Smith to state a cognizable claim against them.

On June 4, 2008, plaintiff requested that the court issue an order requiring that he be provided his legal property in order to allow him to comply with court imposed deadlines. The court will deny plaintiff's request since the court has not yet issued any orders imposing any filing deadlines.

Accordingly, IT IS HEREBY ORDERED that:

1. Service of the second amended complaint is appropriate for the following defendants: Harmon, C. Walker, R. Essman.

2. The Clerk of the Court shall send plaintiff three USM-285 forms, one summons, an instruction sheet, and a copy of the second amended complaint filed December 20, 2007.

3. 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 endorsed second amended complaint filed December 20, 2007.

4. Plaintiff shall not attempt to effect service of the second 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.

5. Plaintiff's request for an order to receive his legal property (Doc. No. 25) is denied.

NOTICE OF SUBMISSION OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the court's order filed one completed summons form;

[#] completed USM-285 forms; and

[#] true and exact copies of the amended complaint filed [date].

DATED: .

Plaintiff

20080908

© 1992-2008 VersusLaw Inc.



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