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Mendez v. Win

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


May 13, 2009

NEFTAN MENDEZ, PLAINTIFF,
v.
K. WIN, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. By order filed March 30, 2009, plaintiff's complaint was dismissed with leave to amend. Plaintiff has now filed an amended complaint.

Plaintiff's amended complaint appears to state cognizable claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action as to defendants Chief Medical Officer Traquina, Dr. Basi, Dr. Rohrer and Dr. Hallos. However, plaintiff has not provided any factual allegations concerning defendants Tan, Win, and Hubbards. Specifically, the amended complaint does not allege facts explaining how these individuals allegedly failed to provide plaintiff medical care for his prostate cancer. In his amended complaint plaintiff merely describes the duties and responsibilities of these individuals. Therefore, the court will not order service of process on defendants Tan, Win, and Hubbards.

Accordingly, IT IS HEREBY ORDERED that:

1. Service of the amended complaint is appropriate for the following defendants: Chief Medical Officer A. Traquina, Dr. A.M. Basi, Dr. J. Rohrer, and Dr. T. Hallos.

2. The Clerk of the Court shall send plaintiff four U.S.M.-285 forms, one summons, an instruction sheet, and a copy of the amended complaint filed April 28, 2009.

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

a. The completed, signed Notice of Submission of Documents;

b. One completed summons;

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

d. Five copies of the endorsed amended complaint filed April 28, 2009.

4. Plaintiff shall not attempt to effect service of the amended complaint on defendants or request a waiver of service of summons from any defendant. 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.

NOTICE OF SUBMISSION OF DOCUMENTS

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

one completed summons form;

[4] completed U.S.M.-285 forms; and

[5] true and exact copies of the amended complaint filed April 28, 2009.

20090513

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