(PC) Cain v. Paviglianti

Opinion

ANTONIO LAMONT CAIN, Case No. 2:20-cv-1768-JAM-JDP (PC) Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO PROCEED ON HIS FIRST AMENDED v. COMPLAINT AND DIRECTING SERVICE BY THE UNITED STATES MARSHAL B. PAVIGLIANTI, WITHOUT PREPAYMENT OF COSTS Defendant. Plaintiff is a federal prisoner proceeding without counsel in this Bivens action.1 The court previously screened plaintiff’s first amended complaint and found that it stated an Eighth Amendment excessive force claim against defendant Paviglianti. ECF No. 16. After defendant filed a formal waiver of service, ECF No. 31, plaintiff filed a motion to amend the complaint, ECF No. 33. That motion was granted, and plaintiff was directed to file a second amended complaint by no later than March 11, 2022. ECF No. 41. Plaintiff has since filed a document in which he states that he no longer wishes to amend his complaint, and that he wants to proceed on his first amended complaint. ECF No. 44. Plaintiff’s filing, ECF No. 44, is construed as a motion to proceed on the first amended complaint’s Eighth Amendment excessive force claim against Pauigliati. So construed, the 1 A reference to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Civil rights actions under § 1983 and Bivens “are identical save for the replacement of a state actor under [Section] 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). motion is granted. Because neither the United States Attorney for this district nor the Attorney General of the United States have been properly served, the court will direct the U.S. Marshal to serve them at this time. Accordingly, it is hereby ORDERED that: 1. Plaintiffs filing, ECF No. 44, is construed as a motion to proceed on the first amended complaint’s Eighth Amendment excessive force claim against Pauigliati. 2. So construed, the motion, ECF No. 44, is granted, and this action shall proceed on the first amended complaint’s Eighth Amendment excessive force claim against defendant Pauigliati. 3. The Clerk of the Court is directed to forward a copy of this order to the U.S. Marshal. 4. The U.S. Marshal is directed to serve all process without prepayment of costs not later than sixty days from the date of this order. 5. Service of process shall be completed by delivering a copy of the summons and complaint to the United States Attorney for the Eastern District of California, and by sending a copy of the summons and complaint by registered or certified mail to the Attorney General of the United States in Washington, D.C. The United States Marshal shall thereafter file a statement with the court confirming that said documents have been served. 6. Defendant shall reply to the complaint within sixty days service on the United States Attorney. See Fed. R. Civ. P. 12(a)(3). ( q Sty - Dated: _ April 13, 2022 □□ JEREMY D. PETERSON 74 UNITED STATES MAGISTRATE JUDGE