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Goods v. McCumber

United States District Court, E.D. California

March 22, 2017

GREGORY GOODS, Plaintiff,
v.
JEFFERY MCCUMBER,, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. Plaintiff's second amended complaint is now before the court. Plaintiff alleges that defendants interfered with his access to the court by denying him the ability to photocopy his habeas petition which exceeded fifty pages in length.

         As plaintiff was previously informed, 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).

         On December 11, 2015, plaintiff was granted leave to provide documents for service of process on defendants Bradford, Dennehy, Hamad, Kemp, and Triche, or to attempt to amend his pleading to state a cognizable claim against defendant McCumber. In his second amended complaint, plaintiff re-pled his claims against defendants Bradford, Dennehy, Hamad, Kemp, and Triche, but did not attempt to state a cognizable claim against defendant McCumber. Rather, plaintiff named three new individuals as defendants: former warden Tim Virga, D. Green, and B. Arent.

         Plaintiff was not granted leave to name new defendants in this 2014 case. Moreover, this action was filed on November 4, 2014, and actions taken by Green[1] and Arent, alleged to have occurred after November 17, 2014, could not have been exhausted through administrative grievances prior to the filing of this action. Also, defendant Virga's sole involvement was addressing plaintiff's administrative appeals on July 13, and December 6, 2013. (ECF No. 22 at 6.) For all of these reasons, the undersigned recommends that plaintiff's claims against Virga, Green and Arent be dismissed without prejudice.

         The second amended complaint states potentially cognizable First Amendment claims for relief against defendants Bradford, Dennehy, Hamad, Kemp, and Triche pursuant to 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 this action.[2]

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

1. Service is appropriate for the following defendants: Bradford, Dennehy, Hamad, Kemp, and Triche.
2. The Clerk of the Court shall send plaintiff five USM-285 forms, one summons, an instruction sheet and a copy of the amended complaint (ECF No. 22).
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. Six copies of the endorsed amended complaint. (ECF No. 22.)
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 ...

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