United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
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.
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.) .
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.
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
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
of Submission of Documents and submit the following ...