(PC) Clem v. Lomeli Doc.

Case 2:05-cv-02129-JKS-CMK Document 6 Filed 11/02/2005 Page 1 of 4

8 IN THE UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JAMES CLEM, No. CIV S-05-2129-DFL-CMK-P

12 Plaintiff,

13 vs. ORDER

14 G. LOMELI,

15 Defendant.

16 /

17 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

18 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1), filed on October

19 24, 2005. The court is required to screen complaints brought by prisoners seeking relief against a

20 governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a).

21 Plaintiff names G. Lomeli as the only defendant. Plaintiff claims that defendant

22 Lomeli acted with deliberate indifference to an immediate and substantial risk to plaintiff’s safety.

23 Plaintiff also claims that defendant Lomeli failed to act in light of knowledge of the alleged safety

24 risk. Specifically, plaintiff states that his cellmate had threatened to murder him if he was not

25 removed from his cell. Plaintiff claims that defendant Lomeli was present when his cellmate

26 made this threat and that defendant Lomeli’s response was “Deal with it.” Plaintiff asserts that,

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 Case 2:05-cv-02129-JKS-CMK Document 6 Filed 11/02/2005 Page 2 of 4

1 immediately following this, his cellmate grabbed plaintiff by the neck and hit him in the jaw

2 several times, causing plaintiff’s jaw to break and causing plaintiff to loose consciousness.

3 Plaintiff states that another correctional officer eventually noticed what was going on and pushed

4 the alarm button. Plaintiff was taken to an off-site hospital for emergency treatment. Plaintiff

5 asks the court to exercise supplemental jurisdiction over related state tort law claims. Plaintiff

6 seeks monetary damages

7 The complaint appears to state a cognizable claim for relief pursuant to 42 U.S.C.

8 § 1983 and 28 U.S.C. § 1915A(b). If the allegations are proven, plaintiff has a reasonable

9 opportunity to prevail on the merits of this action. The court, therefore, finds that service is

10 appropriate and will direct service by the U.S. Marshal without pre-payment of costs. Plaintiff is

11 informed, however, that this action cannot proceed further until plaintiff complies with this order.

12 Plaintiff is warned that failure to comply with this order may result in dismissal of the action. See

13 Local Rule 11-110.

14 Accordingly, IT IS HEREBY ORDERED that:

15 1. Service is appropriate for the following defendant(s):

16 G. LOMELI

17 2. The Clerk of the Court shall send plaintiff one USM-285 form for each

18 defendant identified above, one summons, an instruction sheet, and a copy of the complaint filed

19 October 24, 2005; and

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 Case 2:05-cv-02129-JKS-CMK Document 6 Filed 11/02/2005 Page 3 of 4

1 3. Within 30 days of the date of service of this order, plaintiff shall complete

2 the attached Notice of Submission of Documents and submit the following documents to the

3 court:

4 a. The completed Notice of Submission of Documents;

5 b. One completed summons;

6 c. 1 completed USM-285 form; and

7 d. 2 copies of the endorsed complaint filed October 24, 2005.

9 DATED: November 1, 2005.

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______________________________________
11 CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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 Case 2:05-cv-02129-JKS-CMK Document 6 Filed 11/02/2005 Page 4 of 4

4
IN THE UNITED STATES DISTRICT COURT
5 FOR THE EASTERN DISTRICT OF CALIFORNIA

6 JAMES CLEM, No. CIV S-05-2129-DFL-CMK-P

Plaintiff,
7 vs. ORDER
G. LOMELI,
8 Defendant.

9 /
NOTICE OF SUBMISSION OF DOCUMENTS
10 Plaintiff hereby submits the following documents in compliance with the court's
order:
11 1 completed summons form;
completed USM-285 form(s); and
12 copies of the complaint filed on October 24, 2005.

13 DATED: __________________ ____________________________________

Plaintiff
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