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Winfield v. Schwarzenegger

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


March 16, 2010

PAUL WINFIELD, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET AL., DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is state prisoner proceeding without counsel and in forma pauperis. He seeks relief pursuant to 42 U.S.C. § 1983. By order filed on November 24, 2009, the prior magistrate judge assigned to this case found service appropriate for defendant William Kulka and ordered plaintiff to fill out the proper service forms and return copies of the complaint. However, the November 24, 2009 order was vacated by the prior magistrate judge as plaintiff failed to follow the court's order. Dkt. No. 26. Plaintiff did not complete the summons and USM-285 forms and plaintiff did not include copies of the complaint as ordered by the court. Instead, plaintiff submitted incomplete forms and an amended complaint with new defendants. The court vacated the service order and gave plaintiff a final opportunity to file a fifth amended complaint with allegations against all defendants.

Plaintiff's fifth amended complaint has failed to state cognizable claims against the additional defendants, thus by concurrent order, plaintiff's claims against the remaining defendants were dismissed. The court will allow plaintiff to proceed on his claim against defendant William Kulka. Plaintiff is warned that if he does not properly complete the service forms and return two copies of the fifth amended complaint, plaintiff's entire action may be dismissed.

Plaintiff's fifth amended complaint states a cognizable claim for relief against William Kulka, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.

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

1. Service is appropriate for the following defendant: William Kulka.

2. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet and a copy of the fifth amended complaint filed February 2, 2010.

3. 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 1 above; and

d. Two copies of the endorsed fifth amended complaint filed February 2, 2010.

4. Plaintiff need not attempt service on the 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

1 completed summons form

1 completed USM-285 form

2 copies of the February 2, 2010

Fifth amended Complaint

DATED:

Plaintiff

20100316

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