Opinion
No. CIV S-02-2661 FCD KJM P.
August 29, 2006
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. Several matters are before the court.
Plaintiff has requested that the court order defendants to provide the last known addresses for defendants Rocha and Phillips as they have not yet been served with process. The defendants who have appeared in this action have indicated to the court that they do not know the addresses of Rocha and Phillips. Plaintiff's request will be denied. Also, the court will recommend that Rocha and Phillips be dismissed as the United States Marshal has not been able to serve either defendant with process because plaintiff has failed to supply the court with either of their current addresses. Under Rule 4(m) of the Federal Rules of Civil Procedure, service of process must be made within 120 days of the filing of the complaint. Well over one year has past since the court ordered the Marshal to serve Rocha and Phillips using information provided by plaintiff.
On April 27, 2006, plaintiff filed a motion to compel discovery. On November 18, 2005, the court informed the parties that discovery would close on March 24, 2006. Plaintiff has not adequately explained why he filed his motion after the cutoff. His motion will be denied.
Plaintiff has filed two requests for an extension of time to file an opposition to defendants' motion for summary judgment. Good cause appearing, plaintiff will be granted thirty days within which to file his opposition.
Defendants have asked that the court vacate the dates established for the filing of pretrial statements, pretrial conference and trial. Good cause appearing, defendants' request will be granted. The dates for the filing of pretrial statements, pretrial conference and trial will be reset, if necessary, after defendants' motion for summary judgment is resolved.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's April 12, 2006 "motion to request discovery order on served defendants" is denied;
2. Plaintiff's April 27, 2006 motion to compel discovery is denied;
3. Plaintiff's July 3, 2006, and August 7, 2006 requests for an extension of time to file an opposition to defendants' motion for summary judgment are granted;
4. Plaintiff shall file his opposition to defendants' motion for summary judgment within thirty days of this order;
5. Defendants' August 15, 2006 "motion to vacate trial and pretrial dates" is granted; and
6. The dates established in the court's November 18, 2005 scheduling order for the filing of pretrial statements, pretrial conference and trial are vacated.
IT IS HEREBY RECOMMENDED that defendants Rocha and Phillips be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).