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Walker v. Tilton

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 10, 2008

HAROLD WALKER, PLAINTIFF,
v.
JAMES TILTON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER FINDING SERVICE OF COMPLAINT APPROPRIATE AND FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS (Doc. 28.)

Plaintiff Harold Walker ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on June 2, 2005. (Doc. 1.) Plaintiff consented to jurisdiction by U.S. Magistrate Judge on June 16, 2005. (Doc. 4.) On February 28, 2007, plaintiff filed an amended complaint. (Doc. 28.) On October 15, 2008, the Court screened plaintiff's amended complaint pursuant to 28 U.S.C. § 1915A and found that it states cognizable claims for relief under section 1983 against defendants Lieutenant Hutchinson, Sergeant M. Miranda, Correctional Officer ("C/O") R. Hagea, C/O A. Salgado, C/O A. Sandoval, and C/O E. Welch only, for use of excessive physical force in violation of the Eighth Amendment, based on the events that occurred on May 12, 2005.*fn1 (Doc. 39.) Plaintiff was ordered to either file a second amended complaint or notify the court of his willingness to proceed with the claims found cognizable by the Court. Id. On November 3, 2008, Plaintiff filed written notice to the court that he does not wish to file a second amended complaint and is willing to proceed on the claims found cognizable by the Court. (Docs. 41, 42.) Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512-15 (2002); Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004); Jackson v. Carey, 353 F.3d 750, 754 (9th Cir. 2003); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002).

Accordingly, it is HEREBY ORDERED that:

1. Service is appropriate for the following defendants: LT. HUTCHINSON SGT. M. MIRANDA C/O R. HAGEA C/O A. SALGADO C/O A. SANDOVAL C/O E. WELCH

2. The Clerk of the Court shall send plaintiff six (6) USM-285 forms, six (6) summonses, a Notice of Submission of Documents form, an instruction sheet and a copy of the amended complaint filed February 28, 2007 (Doc. 28.);

3. Within thirty (30) days from the date of service of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the court with the following documents:

a. Completed summonses;

b. One completed USM-285 form for each defendant listed above; and

c. Seven (7) copies of the endorsed amended complaint filed February 28, 2007.

4. Plaintiff need not attempt service on defendants 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.

5. Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed.

IT IS SO ORDERED.


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