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Moore v. Heisey

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 9, 2009

STEVE C. MOORE, PLAINTIFF,
v.
C/O HEISEY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DISMISSING DEFENDANTS BAER AND CDCR DIRECTOR FROM ACTION, FINDING SERVICE OF COMPLAINT APPROPRIATE, AND FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITH THIRTY DAYS

(Docs. 1, 9, and 10)

Plaintiff Steve C. Moore ("Plaintiff") is a former 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 19, 2008. On January 29, 2009, the Court issued an order finding that Plaintiff's complaint states a cognizable excessive force claim against Defendant Heisey, but does not state a claim against Defendant California Department of Corrections and Rehabilitation or Defendant Baer. 28 U.S.C. § 1915A. Plaintiff was ordered to either file an amended complaint or notify the Court of his willingness to proceed only against Defendant Heisey. On March 2, 2009, Plaintiff notified the Court that he is willing to proceed only against Defendant Heisey.

Accordingly, pursuant to 28 U.S.C. § 1915A and Plaintiff's notice, it is HEREBY ORDERED that:

1. Defendants Sgt. Baer and the Director of the California Department of Corrections and Rehabilitation are dismissed for failure to state a claim upon which relief may be granted against them;

2. Service is appropriate for the following defendant on the claim of excessive force in violation of the Eighth Amendment:

C/O HEISEY

3. The Clerk of the Court shall send Plaintiff one (1) USM-285 form, one (1) summons, a Notice of Submission of Documents form, an instruction sheet and a copy of the complaint filed June 19, 2008.

4. 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. One completed summons;

b. One completed USM-285 form; and

c. Two (2) copies of the endorsed complaint filed June 19, 2008.

5. Plaintiff need not attempt service on the defendant 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 defendant pursuant to Federal Rule of Civil Procedure 4 without payment of costs.

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

IT IS SO ORDERED.

20090309

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