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Knox v. Galaza

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 10, 2009

WILLIE H. KNOX, III, PLAINTIFF,
v.
G. M. GALAZA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER FINDING SERVICE OF AMENDED COMPLAINT APPROPRIATE, AND FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS (Doc. 20)

Procedural Background

Plaintiff Willie H. Knox III ("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 January 26, 2007.

On December 4, 2007, this court issued an order requiring plaintiff to either file an amended complaint curing the deficiencies in his claims as identified by the court or notify the court that he did not wish to amend and wished to proceed only on those claims found to be cognizable by the court. (Doc. 10.) On December 14, 2007, plaintiff filed a notice stating that he did not wish to amend and wished to proceed on the claims found to be cognizable by the court. (Doc. 11.) Based on plaintiff's notice, the court issued a Findings and Recommendations recommending that this action proceed only against defendants Soto, Reynoso, Popper, Galaza, Pear, Morales, Reese, Navarro, Crisanto, Reynaga, Wanagitis, Pelayo, Negrete and Hernandez on plaintiff's excessive force and state law claims, and that defendants Woodford, Garza, Alvarez, Parks, Fhemas, Sweeny and Gricewich be dismissed from the action. The Court also issued an order requiring plaintiff to fill out and submit summonses and USM-285 forms for service of process. (Docs. 12, 13.) Plaintiff returned to service documents on September 16, 2008, and the court issued an order directing the United States Marshal to serve plaintiff's second amended complaint on September 19, 2008. (Docs. 15, 17.)

On September 8, 2008, plaintiff filed an objection to the Findings and Recommendations. (Doc. 14.) In his objection, plaintiff consented to the dismissal of defendant Woodford, but objects to the dismissal of defendants Parks, Fhemas, Sweeny and Alvarez. Plaintiff did not object to the dismissal of defendants Garza nor Gricewich.

On October 9, 2008, the Court issued an Order adopting the Findings and Recommendations in part, and dismissed defendants Woodford, Garza, and Gricewich from this action with prejudice. Plaintiff was ordered to file an amended complaint within thirty days.

On November 10, 2008, Plaintiff filed an amended complaint. (Doc. 20). The court then issued an order relieving the United States Marshal from serving defendants with the original complaint. (Doc. 25).

Screening Order

The Court has screened Plaintiff's amended complaint, filed November 10, 2008, pursuant to 28 U.S.C. § 1915A and finds that it states cognizable claims for relief under section 1983 against Defendants G. M. Galaza, J. Soto, F. Reynoso, E. Popper, M. Alvarez, R. P. Pear, M. Morales, D. Reese, C. Navarez, E. Chrisanto, R. Reynaga, M. Wanagitis, S. Pelayo, A. Negrete, E. Hernandez, J. Parks, Fhemos, and K. Sweeny for violation of the Eighth Amendment. Fed. R. Civ. P. 8(a); Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007); Alvarez v. Hill, 518 F.3d 1152, 1157-58 (9th Cir. 2008).

Accordingly, it is HEREBY ORDERED that:

1. Service is appropriate for the following defendants:

G. M. Galaza, J. Soto, F. Reynoso, E. Popper, M. Alvarez, R. P. Pear, M. Morales, D. Reese, C. Navarez, E. Chrisanto, R. Reynaga, M. Wanagitis, S. Pelayo, A. Negrete, E. Hernandez, J. Parks Fhemos, K. Sweeny.

2. The Clerk of the Court shall send Plaintiff eighteen (18) USM-285 forms, eighteen (18) summonses, a Notice of Submission of Documents form, an instruction sheet and a copy of the amended complaint filed November 10, 2008.

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 summons;

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

c. Nineteen (19) copies of the endorsed complaint filed November 10, 2008.

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

IT IS SO ORDERED.

20090310

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