The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS SOME CLAIMS WITHOUT LEAVE TO AMEND, FIND A COGNIZABLE CLAIM STATED AGAINST SOME DEFENDANTS, AND DIRECT THE CLERK, PLAINTIFF, AND THE MARSHAL TO PARTICIPATE IN SERVICE OF THE COMPLAINT (DOCS. 1, 11)
Plaintiff is proceeding pro se with an action for damages and other relief concerning alleged civil rights violations. The matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-304.
On May 4, 2009, the Magistrate Judge filed findings and a recommendation that 1) Plaintiff's claims for wrongful arrest, detention, accusation, or conviction be dismissed without leave to amend; and 2) the Court find that Plaintiff states a cognizable claim against Defendants Heller, Yant, Barrios, and Defendant Doe (supervisor), and that service be determined to be appropriate on Defendants Michael J. Yant, Eric Heller, and Tulare Police Officer Greg Barrios; and 3) the Clerk be directed to forward to Plaintiff appropriate service documents and, upon their return by Plaintiff, to forward them to the Marshal; and 4) Plaintiff be directed to complete and return to the Clerk appropriate service documents within thirty days; and 5) the Marshal be directed to serve the complaint when appropriate service documents are submitted to the Court and forwarded by the Clerk to the Marshal.
The findings and recommendations were served by mail on Plaintiff on May 21, 2009. The service documents were served prematurely on Plaintiff, and Plaintiff returned them to the Clerk; staff's note of May 22, 2009, reflects that pending a ruling by the District Judge on the findings and recommendations, the service documents were placed in a designated area in Operations. The Court anticipates that on the filing of this order, the Clerk will first refer to the retained service documents in connection with the directions stated below, and will forward further service documents to the Plaintiff only if the retained documents are insufficient.
Plaintiff filed timely objections to the findings and recommendations on May 26, 2009.
The undersigned has considered the objections and has determined there is no need to modify the findings and recommendations based on the points raised in the objections.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court finds that the findings and recommendation are supported by the record and proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed May 4, 2009, are ADOPTED IN FULL; and
2. Plaintiff's claims for wrongful arrest, detention, accusation, and conviction ARE DISMISSED WITHOUT LEAVE TO AMEND; and
3. Plaintiff states a cognizable claim against Defendants Heller, Yant, Barrios, and Defendant Doe (supervisor), and service IS APPROPRIATE on the following defendants: Michael J. Yant; Eric Heller; and Tulare Police Officer Greg Barrios;*fn1 and
4. Unless the service documents presently being retained in Operations are sufficient in form and content for immediate forwarding to the Marshal, the Clerk of the Court IS DIRECTED to send Plaintiff three USM-285 forms, three summons, an instruction sheet, a notice of submission of documents form, and one copy of the first amended complaint filed in this Court on February 17, 2009; once sufficient and appropriate service documents are submitted by Plaintiff to the Court, the Clerk SHALL FORWARD THEM TO THE MARSHAL; and
5) If service documents are forwarded to Plaintiff, then within thirty days from the date of service of this order, Plaintiff IS DIRECTED TO COMPLETE the Notice of Submission of Documents and submit the ...