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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID EARL WALKER,

Plaintiff, No. CIV S-04-1671 GEB KJM P

vs.

CORRECTIONAL SERGEANT

K. CLEMENT, et al.,

Defendants.

 / ORDER

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief under 42

U.S.C. § 1983 and has requested leave to proceed in forma pauperis under 28 U.S.C. § 1915. 

This proceeding was referred to this court by Local Rule 72-302 under 28 U.S.C. § 636(b)(1).

Plaintiff has submitted a declaration that makes the showing required by 28

U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 

Plaintiff is required to pay the statutory filing fee in effect at the time of filing of

his action, $150.00. 28 U.S.C. §§ 1914(a), 1915(b)(1). An initial partial filing fee of $10.45 will

be assessed by this order. 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the

appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 

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1

 Plaintiff asserts claims arising under California law. 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 these

claims. 

2

These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

§ 1915(b)(2).

The 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 complaint are proven, plaintiff has a reasonable

opportunity to prevail on the merits of his Eighth Amendment claims against defendants. With

respect to the other causes of action identified in plaintiff’s complaint, plaintiff’s complaint fails

to state claims upon which relief can be granted.1

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

1. Plaintiff's request for leave to proceed in forma pauperis is granted.

2. Plaintiff is obligated to pay the statutory filing fee of $150.00 for this action. 

Plaintiff is assessed an initial partial filing fee of $10.45. All fees shall be collected and paid in

accordance with this court’s order to the Director of the California Department of Corrections

filed concurrently herewith.

3. Service is appropriate for the following defendants: Clement, Davidge,

Simmerson, Stevens and Trullinger. 

4. The Clerk of the Court shall send plaintiff five USM-285 forms, one summons,

an instruction sheet and a copy of the complaint filed August 16, 2004.

5. 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;

/////

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3

c. One completed USM-285 form for each defendant listed in number 3

above; and

d. Five copies of the endorsed complaint filed August 16, 2004. 

6. 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 the above-named defendants pursuant to Federal Rule of Civil Procedure 4

without payment of costs. 

DATED: May 12, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

1

walk1671.1

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID EARL WALKER,

Plaintiff, No. CIV-S-04-1671 GEB KJM P 

vs.

CORRECTIONAL OFFICER NOTICE OF SUBMISSION

K. CLEMENT, et al.,

OF DOCUMENTS

Defendants.

 /

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

order filed :

 completed summons form

 completed USM-285 forms

 copies of the 

 Complaint

DATED: 

 

Plaintiff

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