Opinion
2:19-cv-2198 AC P
06-28-2021
PAUL NIVARD BEATON, Plaintiff, v. MODOC COUNTY SHERIFF, et al., Defendants.
ORDER
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief under 42 U.S.C. § 1983. The case was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Before the court is a letter from plaintiff on docketed June 21, 2021. See ECF No. 20.
Based on its contents, the court construes the letter as a motion for clarification of the order issued on June 9, 2021. See ECF No. 19. Below, the court provides clarification, and directs the Clerk of Court to send plaintiff copies of certain related documents. The court will also, sua sponte, grant plaintiff an extension of time to return the requisite service documents to the court.
On June 9, 2021, the court issued an order which screened plaintiff's first amended complaint (“FAC”) and directed that it be served on defendant Potap, the lone remaining defendant. See ECF No. 19 at 1-2. In his motion for reconsideration, plaintiff states that he never received the court's order that screened his FAC and directed that it be served. See ECF No. 20 at 2. As a result, plaintiff states, he does not know which directions he needs to follow so that service on defendant Potap can be completed. See id.
The court clarifies the relevant past proceedings and resultant status of this case as follows: On June 23, 2020, the magistrate judge previously assigned to this case screened plaintiff's original complaint and determined that plaintiff had only stated a cognizable Fourteenth Amendment due process claim against defendant Potap; not against the Modoc County Sheriff's Office or against William “Tex” Dowdy, the two other named defendants in the action. See ECF No. 8 at 3-4. As a result, plaintiff was given the opportunity to amend the complaint. See id. at 5.
On July 14, 2020, plaintiff's FAC was docketed. See ECF No. 9. The FAC, which has three claims, only names defendant Potap as a defendant. See id. at 2. Claim One alleges a single cognizable Fourteenth Amendment due process claim against defendant Potap for the failure to give proper, reasonable notice about the pending destruction of his property as well as for its subsequent destruction. See generally id. at 3. The two remaining claims state the same facts and add little - if anything - to the action. See id. at 4-5.
Plaintiff states that his U.S. Certificate of Naturalization was destroyed as well as his legal materials and clothing. See ECF No. 9 at 3-5.
For these reasons, the undersigned has determined and stated in its June 9, 2021, combination screening and service order that: (1) the FAC states only a Fourteenth Amendment due process claim against defendant Potap, and (2) the FAC should be served on Potap. See ECF No. 19 at 1-2. So that service may be accomplished, plaintiff has been directed to complete and file the documents listed at the end of the June 2021 order. See id. at 2. Plaintiff was given thirty days to do so. However, because the due date is fast approaching, the court will grant plaintiff an additional twenty-one days from the date of this order to file the necessary documents. Once plaintiff has returned the proper documents to the court, service of defendant Potap will be ordered.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for clarification (ECF No. 20) is GRANTED;
2. As a one-time courtesy, the Clerk of Court shall send plaintiff the following documents from the docket: ECF Nos. 8, 9, 13, and 19; and
3. Within twenty-one days of the date of this order, plaintiff shall return the requisite service documents identified in the court's screening order dated June 9, 2021. See ECF No. 19 at 2.
Plaintiff is informed that failure to timely file the appropriate documents may result in a recommendation that this action be dismissed for failure to prosecute.