United States District Court, E.D. California
February 26, 2014
DEVON DION MANNINGS, Plaintiff,
C/O PALERMO, et al., Defendants.
ORDER FOR THIS ACTION TO PROCEED AGAINST DEFENDANTS SMITH, PALERMO, AND TYLER FOR USE OF EXCESSIVE FORCE, AND DISMISSING ALL OTHER CLAIMS AND DEFENDANTS FROM THIS ACTION
ORDER FINDING SERVICE OF COMPLAINT APPROPRIATE, AND FORWARDING SERVICE DOCUMENTS
TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS (Doc. 1)
GARY S. AUSTIN, Magistrate Judge.
Devon Dion Mannings ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December 6, 2012, at the United States District Court for the Southern District of California. (Doc. 1.) On December 13, 2012, the case was transferred to the Eastern District of California. (Doc. 3.)
On March 1, 2013, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 9.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
The court screened Plaintiff's Complaint pursuant to 28 U.S.C. § 1915A and entered an order on January 21, 2014, requiring Plaintiff to either file an amended complaint or notify the court that he is willing to proceed only on the claims found cognizable by the court. (Doc. 10.) On February 24, 2014, Plaintiff filed a notice informing the court that he is willing to proceed only on the cognizable Eighth Amendment excessive force claims against defendants Smith, Palermo, and Tyler, and requesting dismissal of the claims against defendants Kranrod, Daveiga, and Vasques. (Doc. 11.)
The court finds the Complaint appropriate for service of process. Accordingly, it is HEREBY ORDERED that:
1. This case now proceeds on the Complaint filed on December 6, 2013, against defendants Correctional Officer Palermo, Correctional Officer Tyler, and Lieutenant Smith, for use of excessive force in violation of the Eighth Amendment;
2. All other claims and defendants are DISMISSED from this action based on Plaintiff's failure to state a claim under § 1983;
3. Plaintiff's claims for supervisory liability and inadequate medical care are DISMISSED from this action based on Plaintiff's failure to state a claim under § 1983;
4. Defendants Nurse Kranrod, Captain Daveiga, and Warden Vasquez are DISMISSED from this action based on Plaintiff's failure to state any claims against them under § 1983;
5. The Clerk is directed to reflect the dismissal of defendants Daviega, Vasquez, and Kranrod from this action on the court's docket;
6. Service is appropriate for the following defendants: CORRECTIONAL OFFICER PALERMO CORRECTIONAL OFFICER TYLER LIEUTENANT SMITH
7. The Clerk of Court shall SEND Plaintiff three (3) USM-285 forms, three (3) summonses, a Notice of Submission of Documents form, an instruction sheet and a copy of the Complaint filed on December 6, 2012 (Doc. 1);
8. Within thirty (30) days from the date of this order, Plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the court with the following documents:
a. Completed summonses;
b. One completed USM-285 form for each defendant listed above; and
c. Four (4) copies of the endorsed Complaint filed on December 6, 2012;
9. 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; and
10. The failure to comply with this order may result in the dismissal of this action.
IT IS SO ORDERED.