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Michael Robert Hiscox v. Mike Martel

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


May 7, 2012

MICHAEL ROBERT HISCOX, PLAINTIFF,
v.
MIKE MARTEL, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, who seeks relief pursuant to 42 U.S.C. § 1983. On June 7, 2010, plaintiff's original complaint was dismissed with leave to amend. (Dkt. No. 9.) On October 14, 2010, plaintiff filed the First Amended Complaint (FAC). (Dkt. No. 17.) On November 1, 2011, the court issued a screening order dismissing thirteen*fn1 of the twenty defendants named in the FAC with leave to amend. On November 22, 2011, plaintiff filed the Second Amended Complaint (SAC). (Dkt. No. 22.)

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

Plaintiff brings the SAC against fifteen named defendants at Mule Creek State Prison. This number does not include Peter Vanni, E. Sapata, Mr./Mrs. Kemp, and S. Frisk, defendants named in the FAC and subject to this court's earlier dismissal with leave to amend. Because plaintiff has not amended with respect to these defendants, he has effectively consented to their dismissal with prejudice. (See Dkt. No. 21 at 10.)

The SAC substantially repeats the allegations of the FAC, discussed at length in the November 1, 2011 screening order. Having reviewed the SAC, the undersigned concludes that plaintiff has not cured the deficiencies of the FAC as to the following defendants, previously dismissed with leave to amend: Mike Martel, Ray Garcia, B. Gascon, Kelly Martinez, Heidy Lackner, T. Reece, and Lonnie Jackson. Thus the court will recommend that this action be dismissed with prejudice as to these defendants for the reasons set forth in the November 1, 2011 screening order. (See Dkt. No. 21.)

The SAC states a cognizable claim for relief pursuant to 42 U.S.C. § 1983 that the following defendants violated plaintiff's Eighth Amendment right against deliberate indifference:

T. Wynn, C. Haven, S. Woods, and T. Dage. The SAC also states a cognizable claim that the following defendants violated plaintiff's First Amendment right against retaliation: K.E. Baker, E. Lamb, E. Hyland, D. Thomason, J. Armstrong, and L. Olivas.*fn2 If these allegations of the SAC 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 defendants: T. Wynn, C. Haven, S. Woods, T. Dage, K.E. Baker, E. Lamb, E. Hyland, D. Thomason, J. Armstrong, and L. Olivas.

2. The Clerk of the Court shall send plaintiff ten USM-285 forms, one summons, an instruction sheet and a copy of the Second Amended Complaint filed November 22, 2011.

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. Eleven copies of the endorsed Second Amended Complaint filed November 22, 2011.

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. Per plaintiff's consent, the following defendants are dismissed from this action with prejudice: Peter Vanni, E. Sapata, Mr./Mrs. Kemp, and S. Frisk.

IT IS HEREBY RECOMMENDED that: 1. The following defendants be dismissed from this action with prejudice: Mike Martel, Ray Garcia, B. Gascon, Kelly Martinez, Heidy Lackner, T. Reece, and Lonnie Jackson.

2. The Clerk of Court be directed to amend the docket to reflect that the only defendants remaining in this action are the ten listed above.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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