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Donald Davis v. Correctional Officer Davis

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


June 20, 2012

DONALD DAVIS, PLAINTIFF,
v.
CORRECTIONAL OFFICER DAVIS,
DEFENDANT.

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 with an action for violation of civil rights pursuant to 42 U.S.C. § 1983. On May 30, 2012, the court dismissed plaintiff's complaint with leave to amend. Plaintiff has now filed an amended complaint.

The amended complaint states a cognizable Eighth Amendment claim under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of his Eighth Amendment claim. For reasons stated in the court's March 30, 2012 order, plaintiff's amended complaint does not state a valid claim for violation of the Due Process Clause of the Fourteenth Amendment. Therefore, the court will recommend that claim be dismissed.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Service is appropriate for defendant Davis;

2. The Clerk of the Court shall send plaintiff a USM-285 form, a summons, an instruction sheet and a copy of the amended complaint filed June 11, 2012.

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; and

d. Three copies of the endorsed amended complaint filed June 11, 2012.

4. Plaintiff need not attempt service on defendant Davis and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve defendant Davis pursuant to Federal Rule of Civil Procedure 4 without payment of costs.

IT IS HEREBY RECOMMENDED that plaintiff's claim against defendant Davis for violation of the Due Process Clause of the Fourteenth Amendment be dismissed.

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 twenty-one days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is 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).

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

DONALD DAVIS, Plaintiff, v. CORRECTIONAL OFFICER DAVIS, Defendants.

No. 11-cv-3241 WBS CKD P

NOTICE OF SUBMISSION OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the court's order filed

completed summons form completed USM-285 forms

copies of the

Complaint

DATED:

Plaintiff

20120620

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