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Armstrong v. Garcia

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


May 21, 2009

BRADY K. ARMSTRONG, PLAINTIFF,
v.
SILVEA GARCIA, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. Plaintiff has filed an amended complaint.

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

The court has reviewed plaintiff's amended complaint and finds that the amended complaint states 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 his First Amendment claim against defendant McCue and his Eighth Amendment claims against defendants Gellette, Barton, Callison, Dial, Chandler, Young, James, Roche, Rohlfing and Robertson. With respect to the remainder of the claims and defendants identified in plaintiff's amended complaint, the amendment complaint fails to state a claim upon which relief can be granted.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Previously served defendants Young, James and Chandler file a pleading responsive to plaintiff's amended complaint within thirty days.

2. Service of process is appropriate for defendants McCue, Gellette, Barton, Callison, Dial, Roche, Rohlfing and Robertson.

3. The Clerk of the Court shall send plaintiff eight USM-285 forms, one summons, an instruction sheet and a copy of the amended complaint filed December 15, 2008.

4. Within thirty 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;

b. One completed summons;

c. One completed USM-285 form for each defendant listed in number 2 above; and

d. Nine copies of the endorsed amended complaint filed December 15, 2008.

5. Plaintiff need not attempt service on any 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 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

completed summons form

completed USM-285 forms

copies of the

Amended Complaint

20090521

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