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Pizarro v. Schultz

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 10, 2009

JOSE PIZARRO, PLAINTIFF,
v.
PAUL M. SCHULTZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER FOR ACTION TO PROCEED AGAINST DEFENDANTS SCHULTZ, URBANO, SHOJAEL, WILLIS, SIELICKI, TOLENTINO, STILLWELL, HERNANDEZ, MORGAN, HURETA, EBER, COSTA, WILLIAMS, COBB, JOHN DOE I, AND JOHN DOE II ON PLAINTIFF'S EIGHTH AMENDMENT CLAIMS, AND DISMISSING ALL REMAINING CLAIMS AND DEFENDANTS ORDER FINDING SERVICE OF COMPLAINT APPROPRIATE AND FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS

(Doc. 1)

Plaintiff Jose Pizarro ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff filed this action on October 25, 2006. (Doc. 1.) On November 8, 2006, Plaintiff consented to Magistrate Judge jurisdiction. (Doc. 4.) No other party has appeared in this action. On October 2, 2009, this case was reassigned to the undersigned for all further proceedings, including trial and entry of judgment. (Doc. 14.)

On October 6, 2009, the court screened Plaintiff's complaint pursuant to 28 U.S.C. § 1915A and found that it states cognizable claims for relief under Bivens against all of the named defendants except R. Willis and Dr. Franco, for inadequate medical care in violation of the Eighth Amendment. (Doc. 15.) Plaintiff was given leave to either file an amended complaint or notify the court that he is agreeable to proceeding only with the claims found cognizable by the Court. On November 5, 2009, Plaintiff filed written notice to the court that he does not wish to file an amended complaint and wishes to proceed only with the claims found cognizable by the court. (Doc. 16.) 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. This action now proceeds against defendants Paul M. Schultz, B. Urbano, Mr. Shojael, Mr. Willis, Mr. Sielicki, A. Tolentino, M.D., C/O Stillwell, C/O Hernandez, C/O Morgan, C/O Hureta, C/O Eber, C/O Costa, Lt. Williams, Lt. Cobb, C/O John Doe I, and C/O John Doe II on Plaintiff's claims for inadequate medical care under the Eighth Amendment;

2. All other claims and defendants are dismissed from this action;

3. Plaintiff's claims for conspiracy, equal protection, due process, declaratory relief, and injunctive relief are dismissed from this action based on Plaintiff's failure to state a claim upon which relief may be granted under Bivens;

4. Defendants R. Willis and Dr. Franco are dismissed from this action based on Plaintiff's failure to state any claims against them upon which relief can be granted under Bivens;

5. The Clerk of the Court is directed to reflect on the court's docket the dismissal of defendants Willis and Franco from this action;

6. Service is appropriate for the following defendants: Paul M. Schultz B. Urbano Mr. Shojael Mr. Willis Mr. Sielicki A. Tolentino, M.D. C/O Stillwell C/O Hernandez C/O Morgan C/O Hureta C/O Eber C/O Costa Lt. Williams Lt. Cobb C/O John Doe I C/O John Doe II*fn1

7. The Clerk shall send plaintiff sixteen (16) USM-285 forms, sixteen (16) summonses, a Notice of Submission of Documents form, an instruction sheet and a copy of the complaint filed October 25, 2006 (Doc. 1);

8. 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 summonses;

b. One completed USM-285 form for each defendant listed above; and

c. Seventeen (17) copies of the endorsed complaint filed October 25, 2006;

9. 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;

10. Plaintiff's failure to comply with this order will result in the dismissal of this action.

IT IS SO ORDERED.


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