Opinion
No. 2:16-cv-2139 DB P
02-09-2018
LARRY GIRALDES, JR., Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action under 42 U.S.C. § 1983. Plaintiff consented to magistrate judge jurisdiction. (ECF No. 4.) Presently before the court is plaintiff's request for service of the first amended complaint. (ECF No. 11.)
On September 27, 2017, plaintiff's first amended complaint (ECF No. 5) was screened and found to state a claim for retaliation in violation of the First Amendment against defendants Moreland, Sturgess, Maciel, Hernandez, and Robinson. (ECF No. 6.) The court also found plaintiff failed to state a claim for deliberate indifference in violation of the Eighth Amendment against defendants Sturgess, Kernan, and the California Department of Corrections and Rehabilitation ("CDCR"). (Id.) The court gave plaintiff an opportunity to amend his complaint.
Plaintiff moved for and was granted an extension of time in which to file an amended complaint. (ECF Nos. 9, 10.) However, plaintiff has now requested that the court order service of the defendants named in his First Amendment claim. (ECF No. 11.) The court construes this filing as a notice of plaintiff's willingness to proceed on the complaint as screened. Based on plaintiff's willingness to proceed on the complaint as screened, the court will recommend dismissal of plaintiff's Eighth Amendment claim and defendants Kernan and the CDCR for the reasons stated in the court's September 27, 2017 screening order (ECF No. 6).
In light of Williams v. King, 875 F.3d 500 (9th Cir. 2017) (holding a Magistrate Judge does not have jurisdiction to dismiss a case with prejudice during screening even if the plaintiff has consented to Magistrate Judge jurisdiction), the court will direct the clerk to assign a district judge.
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of Court is directed to randomly assign a district judge.
2. Plaintiff has stated a cognizable claim for retaliation in violation of the First Amendment. Service is appropriate for the following defendants: Moreland, Sturgess, Maciel, Hernandez, and Robinson.
3. The Clerk of the Court shall send plaintiff 5 USM-285 forms, one summons, an instruction sheet, and a copy of the amended complaint filed October 3, 2016 (ECF No. 5).
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 for each defendant listed in number 2 above; and
d. Six copies of the endorsed amended complaint filed October 3, 2016.
5. 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. //// ////
IT IS HEREBY RECOMMENDED that plaintiff's Eighth Amendment claim and defendants Kernan and the CDCR be dismissed for the reasons stated in the court's September 27, 2017 order (ECF No. 6).
These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). 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 result in waiver of the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: February 9, 2018
/s/_________
DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE DLB12
DLB1/Orders/Prisoner.Civil Rights/gira1264.req.serv