No. CIV S-06-2912 LKK EFB P.
June 10, 2009
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff's has filed a motion for reconsideration of the order filed April 29, 2009, in which the court found that plaintiff stated claims against some defendants but not against others. Plaintiff points out that the screening order did not address two of the many claims asserted in the April 18, 2008, amended complaint. One is a claim that when plaintiff was using crutches and had one arm in a sling, R. Rath allegedly used brute force to push plaintiff into a wall in violation of the Eighth Amendment. The other is a claim that J. Stiles falsely stated on official documents that plaintiff had given away property that in fact had been stolen in order to retaliate against plaintiff for the exercise of his First Amendment rights. The court has reviewed these two claims and finds that, for the limited purposes of § 1915A screening, they each state a claim. See 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b).
Accordingly, it hereby is ordered that:
1. Plaintiff's May 13, 2009, motion for reconsideration is granted.
2. Because service of R. Rath and J. Stiles on the above-mentioned claims does not materially alter plaintiff's obligations under the April 29, 2009, order, that order remains in effect.
3. Service is appropriate for defendants R. Rath and J. Stiles.
The court already has provided plaintiff with a copy of the amended pleading and instructions for service of process. Dckt. 16.
5. Within 20 days from service of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit it to the court with the completed summons and USM-285 forms and two copies of the endorsed April 18, 2008, pleading.
6. Upon receipt of the necessary materials, the court will direct the United States Marshal to serve defendants R. Rath and J. Stiles pursuant to Federal Rule of Civil Procedure 4 without payment of costs. Failure to comply with this order will result in a recommendation that claims against these defendants be dismissed.