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Anthony Coleman v. Matthew Cate

November 26, 2012

ANTHONY COLEMAN, PLAINTIFF,
v.
MATTHEW CATE, ET AL., DEFENDANTS.



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

ORDER & 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 August 10, 2012, plaintiff's complaint was found to state an Eighth Amendment claim against defendant Oliver. To give plaintiff a chance to cure the defects of the complaint against the remaining three defendants, the court dismissed the complaint with leave to amend.

On September 4, 2012, plaintiff filed an amended complaint. (Dkt. No. 11.) The court concludes that for screening purposes, plaintiff states an Eighth Amendment claim as to defendants Oliver and Perez. If these allegations of the complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. Plaintiff does not state a claim as to defendants Cate and Barnes for the reasons set forth in the August 10, 2012 screening order.

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

1. The Clerk's office is directed to assign a district judge to this case;

2. Service is appropriate for the following defendants: Oliver and Perez.

3. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet and a copy of the amended complaint filed September 4, 2012.

4. 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. Two copies of the endorsed amended complaint filed September 4, 2012.

5. Plaintiff need not attempt service on defendant 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 defendant pursuant to Federal Rule of Civil Procedure 4 without payment of costs.

IT IS HEREBY RECOMMENDED THAT the following defendants are dismissed from this action with prejudice: ...


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