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Anderson v. California Medical Faciltiy

United States District Court, E.D. California

July 20, 2017

JULIUS ANDERSON, Plaintiff,
v.
CALIFORNIA MEDICAL FACILTIY, SOLANO,, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY 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. On October 28, 2016, plaintiff was given leave to file a third amended complaint. Since that date, plaintiff has filed two documents titled “third amended complaint”: one on December 6, 2016 and one on January 17, 2017. Good cause appearing, this action will proceed on the later-filed complaint and the earlier one will be stricken.

         Plaintiff's January 17, 2017 third amended complaint is before the court for screening under 28 U.S.C. § 1915A(a). The court has conducted the required screening and finds that plaintiff may proceed with the following claims:

1. Claim arising under the Eighth Amendment for excessive force against defendant Hernandez as described in section V, paragraph 7 of plaintiff's third amended complaint (ECF No. 37 at 8);
2. Claim for retaliating against plaintiff for the exercise of his First Amendment rights against defendant Mendoza as described in section V, paragraphs 10-11, of the third amended complaint (Id. at 8-9); and
3. Claim arising under the Eighth Amendment for denial of adequate medical care against defendant Mendoza as described in section V, paragraph 10, of plaintiff's third amended complaint (Id.) .

         In all other respects, plaintiff's third amended complaint fails to state a claim upon which relief can be granted. Of note, plaintiff's claims against the California Medical Facility are barred by the Eleventh Amendment. Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam). Further, although plaintiff asserts claims arising under California law, he fails to plead compliance with the California Government Claims Act. See Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995). Plaintiff does not state a claim upon which relief can be granted against defendant Harris in section V, paragraph 6 of plaintiff's third amended complaint (ECF No. 37 at 7) as he does not provide facts suggesting he was subjected to cruel and unusual punishment, nor does he identify conduct engaged in by him protected under the First Amendment which caused Harris to retaliate.[1]

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

1. The “third amended complaint” filed by plaintiff on December 6, 2016 is stricken.
2. Service is appropriate for defendants Hernandez and Mendoza.
3. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an instruction sheet and a copy of the third amended complaint (ECF No. 37).
4. Within thirty days from the date of this order, plaintiff shall complete the attached

         Notice of Submission of Documents and submit the following ...


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