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Joshua Aaron Kershaw v. Matthew Cate

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 5, 2012

JOSHUA AARON KERSHAW,
PLAINTIFF,
v.
MATTHEW CATE, ET AL., DEFENDANTS.

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

ORDER DISMISSING EIGHTH AMENDMENT CLAIMS AGAINST

DEFENDANTS BENNETT, GREENE, HOSMAN, BUCKLEY, TRIMBLE, YATES, WILSON, AND CATE PURSUANT TO PLAINTIFF'S NOTICE, AND DIRECTING MAGISTRATE JUDGE TO ISSUE SERVICE DOCUMENTS FOR DEFENDANTS DUTRA, BROCKMEYER, AND LEE (Docs. 7-9)

Plaintiff Joshua Aaron Kershaw, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 11, 2011. On July 20, 2011, Plaintiff filed an amended complaint as a matter of right. Fed. R. Civ. P. 15(a).

On March 27, 2012, the Magistrate Judge issued a screening order and found that Plaintiff's amended complaint states a cognizable Eighth Amendment claim against Defendants Dutra, Brockmeyer, and Lee, but it does not state any cognizable claims against Defendants Bennett, Greene, Hosman, Buckley, Trimble, Yates, Wilson, and Cate. 28 U.S.C. § 1915A. Plaintiff was directed to either file a second amended complaint or notify the Court of his willingness to proceed only on the claim found to be cognizable. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). On April 4, 2012, Plaintiff filed a notice declining to amend and agreeing to proceed only on his cognizable claim against Defendants Dutra, Brockmeyer, and Lee.

Accordingly, based on Plaintiff's election to proceed without amending and for the reasons set forth by the Magistrate Judge in the screening order, it is HEREBY ORDERED that:

1. This action shall proceed on Plaintiff's amended complaint, filed on July 20, 2011, against Defendants Dutra, Brockmeyer, and Lee on Plaintiff's Eighth Amendment claim;

2. Plaintiff's Eighth Amendment claims against Defendants Bennett, Greene, Hosman, Buckley, Trimble, Yates, Wilson, and Cate are dismissed for failure to state a claim;

3. The Clerk's Office shall terminate Defendants Bennett, Greene, Hosman, Buckley, Trimble, Yates, Wilson, and Cate as parties to this action; and

4. The Magistrate Judge shall provide Plaintiff with the documents necessary to initiate service of process.

IT IS SO ORDERED.

20120405

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