UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 17, 2010
CURTIS LE'BARRON GRAY,
DR. ULIT, ET AL.,
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 (Doc. 9)
I. Screening Requirement
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
II. Plaintiff's Claims
This action proceeds on the December 6, 2010, first amended complaint, filed in response to an earlier order dismissing the original complaint and granting Plaintiff leave to file an amended complaint. Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at the California Men's Colony in San Luis Obispo, brings this civil rights action against the following defendants: the CDCR; Wayne Ulit, a physician employed by the CDCR at Corcoran State Prison; an unidentified Appeals Coordinator. The events that give rise to this lawsuit occurred while Plaintiff was housed at Corcoran State Prison.
Plaintiff alleges that from April 2, 2008, Dr. Ulit was "made aware" of a painful retinal tear in Plaintiff's left eye. Plaintiff alleges facts, liberally construed, indicating that Dr. Ulit waited 70 days to respond to Plaintiff's condition. (Am.Compl. ¶ IV.) A "serious medical need is present whenever the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain."Clement v. Gomez, 298 F.3d 898, 904-905 (9th Cir. 2002). The Court finds that, liberally construed, Plaintiff states a claim for relief against Dr. Ulit on his Eight Amendment claim.*fn1
Accordingly, it is HEREBY ORDERED that:
1. Service is appropriate for the following defendants: WAYNE ULIT, M.D.
2. The Clerk of the Court shall send Plaintiff one USM-285 form, one summons, a Notice of Submission of Documents form, an instruction sheet and a copy of the first amended complaint filed December 6, 2010.
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. Two copies of the endorsed first amended complaint filed December 6, 2010.
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.