Opinion
Case No. 1:03-CV-6290-OWW-LJO-P.
February 21, 2006
ORDER NOTIFYING PARTIES OF CASE STATUS
Plaintiff David Maurice Gomez ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On February 17, 2006, the Honorable Oliver W. Wanger granted in part and denied in part Defendants' motion for summary judgment. Defendants Scribner, Rocha, and Costello were granted summary adjudication on Plaintiff's Eighth Amendment failure-to-protect claim, Defendants Saddi, Bailey, and German were granted summary adjudication on Plaintiff's Eighth Amendment medical care claim, and Defendants Saddi, Bailey, and German were denied summary adjudication on Plaintiff's Eighth Amendment failure-to-protect claim. This matter is ready to be set for trial on Plaintiff's failure-to-protect claim against Defendants Saddi, Bailey, and German. However, service of process is still outstanding as to Defendant Luna. The Court issued an order directing the United States Marshal to re-attempt service on Defendant Luna on September 9, 2005. The Marshal was informed in January of 2006 that CSP-Corcoran had not received the waiver, and the waiver was again mailed to Corcoran on January 25, 2006. If Defendant is identified, Defendant has sixty days to return the waiver. Fed.R.Civ.P. 4(d). If Defendant does not waive service, but has been identified, personal service must then be initiated. Id.
Accordingly, this matter will not be set for jury trial until the service issues involving Defendant Luna have been resolved.
If Plaintiff wishes to voluntarily dismiss his claim against Defendant Luna and have this matter set for trial, he may do so. Fed.R.Civ.P. 41(a)(2). Any such dismissal would be with prejudice. Id.
IT IS SO ORDERED.