(PC) Spence v. McCorkle

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA GERALD SPENCE, No. 2:23-cv-0953 TLN CKD P 12 Plaintiff, 13 v. ORDER AND MCCORKLE, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants.

17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. On September 25, 2023, the court screened plaintiff’s complaint as the court is required to do under 28 U.S.C. § 1915A. The court found that plaintiff could proceed on the following claims: 21 1. Use of excessive force against defendant McCorkle; and 22 2. Failure to protect against defendant Anansev.

23 In the screening order, the court indicated that it was not clear whether the claims arise under the Eighth or Fourteenth Amendment as it was not clear whether plaintiff had been convicted of an offense at the time the incidents occurred. A review of California Court of Appeal records in Third Appellate District case numbers C094469 and C099550 reveals that plaintiff had been convicted of a crime at the time the incidents occurred and was in custody based on that conviction. Accordingly, plaintiff’s claims arise under the Eighth Amendment.

1 In the September 25, 2023, order plaintiff was given two options: proceed on the claims identified above or file an amended complaint in an attempt to cure the deficiencies with respect to the other claims and defendants in the original complaint. Plaintiff was informed that failure to expressly choose an option would be construed as consent to dismiss the deficient claims and proceed only on the cognizable claims identified above. Plaintiff did not expressly choose an option.

7 Accordingly, IT IS HEREY ORDERED that: 8 1. Service of plaintiff’s complaint is appropriate for: 9 A. Deputy Corporal McCorkle, Sacramento County Main Jail; and 10 B. Deputy Anansev, Sacramento County Mail Jail.

11 2. The Clerk of the Court shall send plaintiff 2 USM-285 forms, one summons, an instruction sheet and a copy of the complaint.

13 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: 15 a. The completed Notice of Submission of Documents; 16 b. One completed summons; 17 c. One completed USM-285 form for each defendant listed in number 1 above; and 19 d. Three copies of the complaint.

20 4. Plaintiff need not attempt service on defendants and need not request waiver of service.

21 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.

24 5. Failure to comply with this order will result in a recommendation that this action be dismissed.

26 IT IS HEREBY RECOMMENDED that all claims and defendants other than a claim arising under the Eighth Amendment against defendant McCorkle for use of excessive force and a ///// | claim arising under the Eighth Amendment against defendant Anansev for failure to protect be | dismissed.

3 These findings and recommendations are 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 waives the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th || Cir. 1991).

10 | Dated: January 8, 2024 ; 20 } it | / de □ ae, i CAROLYN K DELANEY 12 UNITED STATES MAGISTRATE JUDGE spen0953.8 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA GERALD SPENCE, No. 2:23-cv-0953 TLN CKD P 11 Plaintiff, 12 v. NOTICE OF SUBMISSION OF DOCUMENTS MCCORKLE, et al.

14 Defendants.

16 Plaintiff hereby submits the following documents in compliance with the court's order filed _____________________: 18 ______ completed summons form 19 ______ completed USM-285 forms 20 ______ copies of the May 22, 2023, Complaint DATED: 24 ________________________________ Plaintiff