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Moore v. Duffy

United States District Court, E.D. California

March 13, 2014

DUANE REED MOORE, Plaintiff,
v.
B. DUFFY, et al., Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS

CAROLYN K. DELANEY, Magistrate Judge.

Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. On November 26, 2013, the court recommended that this action be dismissed for plaintiff's failure to file an amended complaint. Because plaintiff has now filed an amended complaint, the court's findings and recommendations will be vacated.

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).

In his complaint, plaintiff alleges he has been denied a medically necessary diet at the California Medical Facility. Plaintiff essentially admits that pursuant to California Department of Corrections and Rehabilitation policy, the diet he seeks is not available except on approval of the Chief Medical Executive at plaintiff's prison-the California Medical Facility (CMF). Am. Compl. at 10, 52-53 & 67-68.[1] Plaintiff identifies defendant Bick as the Chief Medical Executive at CMF.

Good cause appearing, the court will order that defendant Bick be served with process with respect to a claim for denial of medical care arising under the Eighth Amendment. Because plaintiff fails to adequately allege that any other defendant is responsible for plaintiff's failure to receive a medically necessary diet, the court will recommend that those defendants be dismissed.

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

1. The court's November 26, 2013 findings and recommendations are vacated.

2. Service is appropriate for defendant Bick.

3. The Clerk of the Court shall send plaintiff a USM-285 forms, a summons, an instruction sheet and a copy of the amended complaint filed December 4, 2013.

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; and
d. Two copies of the endorsed amended complaint.

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

IT IS HEREBY RECOMMENDED that defendants Duffy, Thumser, Elam, Carolan, Horgan, Allen, J. Jones, S. Jones, Zamora, Matteucci and Toche 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 fourteen 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).


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