UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 1, 2009
ESS'NN A. AUBERT, PLAINTIFF,
KEVIN ELIJAH, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER FINDING SERVICE OF COMPLAINT APPROPRIATE, AND FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS
Plaintiff Ess'nn A. Aubert 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 his complaint on November 8, 2007.
Having screened Plaintiff's complaint pursuant to 28 U.S.C. § 1915A, this Court finds that it states cognizable claims for relief under section 1983 against defendants Kevin Elijah and Mario Garcia for use of excessive physical force in violation of the Eighth Amendment.*fn1 Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512-15 (2002); Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004); Jackson v. Carey, 353 F.3d 750, 754 (9th Cir. 2003); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002).
Accordingly, it is HEREBY ORDERED that:
1. Service is appropriate for the following Defendants: C/O Kevin Elijah C/O Mario Garcia
2. The Clerk of the Court shall send Plaintiff two (2) USM-285 forms, two (2) summonses, a Notice of Submission of Documents form, an instruction sheet and a copy of the Plaintiff's complaint filed November 8, 2007.
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. Three (3) copies of the endorsed complaint filed November 8, 2007.
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.