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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RICHARD M. GILMAN,

Plaintiff, No. CIV S-04-0035 DFL KJM P

vs.

EDWARD S. ALAMEDIA, et al.,

Defendants. ORDER

 /

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action

filed under 42 U.S.C. § 1983. By order filed November 1, 2004, plaintiff's complaint was

dismissed with leave to file an amended complaint. Plaintiff has now filed an amended

complaint.

Plaintiff’s amended complaint states a cognizable claim for relief under 42 U.S.C.

§ 1983 and 28 U.S.C. § 1915A(b). If the allegations of the amended complaint are proven,

plaintiff has a reasonable opportunity to prevail on the merits of his Eighth Amendment claim

against defendant Zhu. With respect to plaintiff’s other claims, plaintiff’s amended 

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 Plaintiff asserts several state law claims. However, plaintiff fails to allege compliance

with California’s Tort Claims Act. See Cal. Gov’t Code § 910; Mangold v. Cal. Pub. Utils.

Comm’n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Therefore, plaintiff cannot proceed on those

claims. 

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complaint fails to state a claim upon which relief can be granted.1 Therefore, the court will order

service of process only upon defendant Zhu.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Service is appropriate for defendant Zhu. 

2. The Clerk of the Court shall send plaintiff one USM-285 form, one summons,

an instruction sheet and a copy of the amended complaint filed December 21, 2004.

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:

a. The completed Notice of Submission of Documents;

b. One completed summons;

c. One completed USM-285 form; and 

d. Two copies of the endorsed amended complaint filed December 21,

2004. 

4. 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 defendant Zhu under Federal Rule of Civil Procedure 4 without payment of

costs. 

DATED: May 19, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

1

gilm0035.1

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RICHARD M. GILMAN

Plaintiff, No. CIV-S-04-0035 DFL KJM P 

vs.

EDWARD S. ALAMEDIA, et al., NOTICE OF SUBMISSION

Defendants. OF DOCUMENTS

 /

Plaintiff hereby submits the following documents in compliance with the court's

order filed :

 completed summons form

 completed USM-285 form

 copies of the 

 Amended Complaint

DATED: 

 

Plaintiff

Case 2:04-cv-00035-DFL -KJM Document 10 Filed 05/20/05 Page 3 of 3