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Maeshack v. Avenal State Prison

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 12, 2009

ROBERT MAESHACK, PLAINTIFF,
v.
AVENAL STATE PRISON, 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. 17.)

Plaintiff Robert Maeshack ("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 December 22, 2005. On October 27, 2008, this action was reassigned to Magistrate Judge Gary L. Austin for all within the meaning of 28 U.S.C. § 636 (c). (Doc. 20.)

On February 20, 2007, the court dismissed plaintiff's complaint with leave to amend. (Doc. 15.) On March 16, 2007, plaintiff filed an amended complaint. (Doc. 17.) On November 21, 2008, after screening the amended complaint pursuant to 28 U.S.C. § 1915A, the court issued an order for plaintiff to either file a second amended complaint or notify the court of his willingness to proceed only on the claims found cognizable by the court. (Doc. 21.) On December 15, 2008, plaintiff filed written notification to the court that he is willing to proceed only on the claims found cognizable by the court in the amended complaint. (Doc. 22.) The court found that the amended complaint states cognizable claims for relief under section 1983 against defendants Harbison, Dr. Weed, McIntyre and Dr. Sweetland on plaintiff's Eighth Amendment medical care claim and his state law medical malpractice claim.*fn1 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: MTA HARBINSON DR. WEED DR. McINTYRE DR. SWEETLAND

2. The Clerk of the Court shall send plaintiff four (4) USM-285 forms, four (4) summonses, a Notice of Submission of Documents form, an instruction sheet and a copy of the amended complaint filed March 16, 2007. (Doc. 17.)

3. Within thirty (30) days from the date 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. Five (5) copies of the endorsed amended complaint filed March 16, 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; and

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

IT IS SO ORDERED.


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