(PC) Cain v. Paviglianti ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ANTONIO LAMONT CAIN, Case No. 2:20-cv-1768-JAM-JDP (PC) 11 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO PROCEED ON HIS FIRST AMENDED 12 v. COMPLAINT AND DIRECTING SERVICE BY THE UNITED STATES MARSHAL 13 B. PAVIGLIANTI, WITHOUT PREPAYMENT OF COSTS 14 Defendant. 15 16 Plaintiff is a federal prisoner proceeding without counsel in this Bivens action.1 The court 17 previously screened plaintiff’s first amended complaint and found that it stated an Eighth 18 Amendment excessive force claim against defendant Paviglianti. ECF No. 16. After defendant 19 filed a formal waiver of service, ECF No. 31, plaintiff filed a motion to amend the complaint, 20 ECF No. 33. That motion was granted, and plaintiff was directed to file a second amended 21 complaint by no later than March 11, 2022. ECF No. 41. Plaintiff has since filed a document in 22 which he states that he no longer wishes to amend his complaint, and that he wants to proceed on 23 his first amended complaint. ECF No. 44. 24 Plaintiff’s filing, ECF No. 44, is construed as a motion to proceed on the first amended 25 complaint’s Eighth Amendment excessive force claim against Pauigliati. So construed, the 26 1 A reference to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Civil rights 27 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. 28 1991). 1 | motion is granted. Because neither the United States Attorney for this district nor the Attorney 2 | General of the United States have been properly served, the court will direct the U.S. Marshal to 3 | serve them at this time. 4 Accordingly, it is hereby ORDERED that: 5 1. Plaintiffs filing, ECF No. 44, is construed as a motion to proceed on the first amended 6 | complaint’s Eighth Amendment excessive force claim against Pauigliati. 7 2. So construed, the motion, ECF No. 44, is granted, and this action shall proceed on the 8 | first amended complaint’s Eighth Amendment excessive force claim against defendant Pauigliati. 9 3. The Clerk of the Court is directed to forward a copy of this order to the U.S. Marshal. 10 4. The U.S. Marshal is directed to serve all process without prepayment of costs not later 11 | than sixty days from the date of this order. 12 5. Service of process shall be completed by delivering a copy of the summons and 13 || complaint to the United States Attorney for the Eastern District of California, and by sending a 14 | copy of the summons and complaint by registered or certified mail to the Attorney General of the 15 | United States in Washington, D.C. The United States Marshal shall thereafter file a statement 16 | with the court confirming that said documents have been served. 17 6. Defendant shall reply to the complaint within sixty days service on the United States 18 | Attorney. See Fed. R. Civ. P. 12(a)(3). 19 20 IT IS SO ORDERED. 21 ( q Sty - Dated: _ April 13, 2022 □□ 22 JEREMY D. PETERSON 74 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28