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Joe Danny Huerta v. Margaret Mims

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 21, 2010

JOE DANNY HUERTA,
PLAINTIFF,
v.
MARGARET MIMS, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS, AND DIRECTING PLAINTIFF TO PROVIDE ADDITIONAL INFORMATION TO IDENTIFY DEFENDANTS AND REFERRING MATTER BACK TO MAGISTRATE JUDGE TO INITIATE SERVICE OF PROCESS(Docs. 1, 10, 14)

Plaintiff Joe Danny Huerta is a former detainee proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On September 28, 2009, the Magistrate Judge screened the compliant and found that it states a claim against Doe Defendants for excessive force in violation of the Eighth Amendment, but does not state any other claims for relief under section 1983. 28 U.S.C. § 1915A. Plaintiff was ordered to either file an amended complaint or notify the Court of his willingness to proceed only on the claim found to be cognizable. Plaintiff filed an amended complaint which was dismissed for failure to state a claim and given leave to file an amended complaint or to proceed on the claims previously found cognizable. On December 20, 2010, Plaintiff filed a notice stating that he does not wish to amend his complaint and is willing to proceed only on his cognizable excessive force claim.

While the complaint states a claim for relief for excessive force, Plaintiff does not identify Doe Defendants. Because Plaintiff is proceeding in forma pauperis, the Court must appoint the United States Marshal to serve each defendant with a summons and complaint. Fed. R. Civ. Pro. 4(c)(2). However, the Marshal cannot locate and serve unidentified defendants. Within thirty days of the date of service of this order, Plaintiff shall provide the Court with further information to assist the Marshal in serving Defendants. If Plaintiff can remember any other details that might assist the Court and the Marshal, Plaintiff shall so inform the Court.

Accordingly, based on Plaintiff's notice, it is HEREBY ORDERED that:

1. This action shall proceed for monetary damages on the complaint filed December 9, 2008, against Doe Defendants for use of excessive force, in violation of the Eighth Amendment;

2. Plaintiff's excessive force claim against Defendant Mims is dismissed for failure to state a claim;

3. Plaintiff's claims for injunctive relief are dismissed;

4. Within thirty days of the date of service of this order, Plaintiff shall provide the Court with further information to assist the Marshal in serving Defendants; and

5. This matter is referred back to the Magistrate Judge to initiate service of process proceedings.

IT IS SO ORDERED.

b9ed48

20101221

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