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Melvin Joseph Simmons v. Deral G. Adams

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 8, 2011

MELVIN JOSEPH SIMMONS,
PLAINTIFF,
v.
DERAL G. ADAMS, ET AL., DEFENDANTS.

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

ORDER DIRECTING ACTION TO PROCEED ON EIGHTH AMENDMENT CLAIM AGAINST DEFENDANT SANDERS, DISMISSING DEFENDANT CRUZ AND OTHER CLAIMS, AND REFERRING MATTER BACK TO MAGISTRATE JUDGE FOR FURTHER PROCEEDINGS (Docs. 12, 19, and 20)

Plaintiff Melvin Joseph Simmons, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 14, 2010. On June 22, 2011, the Court screened Plaintiff's amended complaint pursuant to 28 U.S.C. § 1915A and found that it states an Eighth Amendment excessive force claim against Defendant Sanders. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007). However, the Court found that no other claims were cognizable. Plaintiff was ordered to either file a second amended complaint or notify the Court of his willingness to proceed only on his cognizable claim. On July 29, 2011, Plaintiff notified the Court that he is willing to proceed on the claim found to be cognizable in the screening order.

Accordingly, in light of the screening order and Plaintiff's election to proceed on his cognizable claim, it is HEREBY ORDERED that:

1. This action shall proceed on Plaintiff's amended complaint, filed January 27, 2011, on Plaintiff's Eighth Amendment excessive force claim against Defendant Sanders;

2. Defendant Cruz and Plaintiff's other claims are dismissed from this action; and 3. This matter is referred back to the Magistrate Judge to initiate the service of process phase.

IT IS SO ORDERED.

b9ed48

20110808

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