UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 14, 2009
TRACYE B. WASHINGTON, PLAINTIFF,
A. AGUIRRE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S STATE CLAIMS ORDER FINDING SERVICE OF SECOND AMENDED COMPLAINT APPROPRIATE AND FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS
Plaintiff Tracye B. Washington ("Plaintiff") 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 this action on February 27, 2008. (Doc. 1.) Plaintiff consented to the jurisdiction of a U.S. Magistrate Judge on March 12, 2008. (Doc. 5.)
On April 16, 2008, Plaintiff filed the first amended complaint. (Doc. 13.) On July 17, 2009, the Court screened the first amended complaint pursuant to 28 U.S.C. § 1915A and dismissed it for failure to state a claim, with leave to amend. (Doc. 26.) On September 25, 2009, Plaintiff filed the second amended complaint. (Doc. 29.)
On November 20, 2009, the Court screened the second amended complaint and found that it states cognizable claims for relief under section 1983 against defendants Aguirre, Wattree, Trueworthy, Bascadillo, and John Doe 1, for failure to protect Plaintiff in violation of the Eighth Amendment, based on the events that occurred on August 6 and 7, 2007. (Doc. 30.) Plaintiff was given leave to either file a third amended complaint or notify the Court that he is agreeable to proceeding only with the federal claims found cognizable by the Court. Id. On July 15, 2008, Plaintiff filed written notice to the Court that he does not wish to file a third amended complaint and instead wishes to proceed only on the federal claims, pursuant to the Court's order. (Doc. 31.) 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. Plaintiff's state claims are dismissed from this action, for failure to state a claim upon which relief may be granted, and this action now proceeds against defendants C/O Trueworthy, C/O A. Aguirre, C/O D. Wattree, C/O Bascadillo, and John Doe 1, for failure to protect Plaintiff in violation of the Eighth Amendment;
2. Service is appropriate for the following defendants: C/O TRUEWORTHY C/O A. AGUIRRE C/O D. WATTREE C/O BASCADILLO*fn1
3. The Clerk of the Court shall send Plaintiff four (4) USM-285 forms, four (4) summonses, a Notice of Submission of Documents form, an instruction sheet and a copy of the second amended complaint filed September 25, 2009 (Doc. 29);
4. 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. Five (5) copies of the endorsed second amended complaint filed September 25, 2009;
5. 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; and
6. The failure to comply with this order will result in a recommendation that this action be dismissed.
IT IS SO ORDERED.