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Johnson v. Robinson

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


May 13, 2009

DUANE JOHNSON, PLAINTIFF,
v.
ROBINSON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Raymond C. Fisher United States Circuit Judge Sitting by Designation

ORDER GRANTING REQUEST TO PROCEED ON SINGLE COGNIZABLE CLAIM

On March 20, 2009, this court screened plaintiff's pro se amended complaint and found he had stated a cognizable claim for relief against defendant E. Robinson for First Amendment retaliation, but had failed to state additional claims against Robinson and the other named defendants, S. Feudner, B. Clark, S. Peterson and R. Cappel (Docket No. 10). Plaintiff was granted 30 days to either file an amended complaint or notify the court he wished to proceed on the cognizable claim only (Docket No. 10). Plaintiff informed the court he wished to file an amended complaint and sought an extension of time for filing it (Docket No. 12), which was granted (Docket No. 13).

Plaintiff has now informed the court he wishes to proceed only on the single cognizable claim against defendant Robinson. As explained in this court's screening order (Docket No. 10 at 10), the court will therefore dismiss the remaining claims and defendants from this action and direct the Clerk to forward plaintiff the necessary materials to initiate service of process on defendant Robinson. Accordingly, it is hereby ORDERED as follows:

1. Service is appropriate for the following defendant:

a. Correctional Officer E. Robinson

2. The Clerk of the Court shall send plaintiff one (1) USM-285 form, one summons, an instruction sheet and a copy of the original complaint, filed September 2, 2008 (Docket No. 1) and a copy of the amended complaint, filed November 4, 2008 (Docket No. 7).

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

a. The completed Notice of Submission of Documents form;

b. One completed summons;

c. One completed USM-285 form for each defendant listed in number 1 above; and

d. Two (2) copies each of the endorsed complaint filed September 2, 2008 and the endorsed amended complaint filed November 4, 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. Plaintiff's Eighth Amendment, Fourteenth Amendment and state law claims against defendant Robinson based on the alleged body cavity search are dismissed with prejudice.

6. Plaintiff's claims against defendants Feudner, Clark, Peterson and Cappel are dismissed without prejudice.

7. Defendants Feudner, Clark, Peterson and Cappel are dismissed from this action.

8. Plaintiff's request for habeas corpus relief is dismissed without prejudice for failure to exhaust state remedies.

9. This case shall proceed only on the § 1983 claim alleging defendant Robinson retaliated against Plaintiff for filing administrative grievances, in violation of the First Amendment.

NOTICE OF SUBMISSION OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the court's order filed

completed summons form

completed USM-285 forms

copies of the Complaint

copies of the Amended Complaint

20090513

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