Navarro v. Herndon

Full title: MARIO NAVARRO, Plaintiff, v. DEBRA HERNDON, et al., Defendants

Court: United States District Court, E.D. California

Date published: Apr 15, 2011

No. 2:09-cv-1878 KJM KJN P (E.D. Cal. Apr. 15, 2011)

Opinion

No. 2:09-cv-1878 KJM KJN P.

April 15, 2011

ORDER

KENDALL NEWMAN, Magistrate Judge

Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. The court ordered service of plaintiff's amended complaint on September 13, 2010. (Dkt. No. 28.) Service of process has been successful for fourteen of the seventeen named defendants.¹ However, three defendants remain unserved: Frishman, ² Shelton, and O'Brien.³ Plaintiff has filed a motion to compel discovery in order to obtain from defendants' counsel the requisite information to serve process on these defendants (Dkt. No. 57), and seeks an extension of time within which to effect such service (Dkt. No. 58). Meanwhile, on November 19, 2010, before all defendants were served, defendants filed a motion to dismiss plaintiff's amended complaint. (Dkt. No. 38.) Plaintiff has filed an opposition to that motion. (Dkt. No. 48.)

1 The following defendants were served process and have subsequently appeared in this action: Nicholas, Vasquez, Kernan, Morrow, Walker, Kelly, Johnson, Sclafani, Baker, Grannis, Baxter, Costa, Soliman, and Griffin.

2 The court recognizes that service of process is still pending with the U.S. Marshal for defendant Frishman. (See Dkt. No. 46, ordering service on January 4, 2011.) However, the passage of time indicates that more accurate information is required. (Cf. Dkt. No. 52, waiver of service returned executed by defendant Griffin, for whom service of process was ordered the same date as for Frishman.)

3 The court recognizes that the correct spelling of these defendants' names may currently be unresolved; both plaintiff and defendants' counsel must consider this variable in their efforts to comply with this order.

Good cause having been shown, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to compel discovery (Dkt. No. 57) is granted in part, as follows:

a. Within fourteen (14) days after the filing date of this order, counsel for defendants (who is an attorney with the California Attorney General's office) shall obtain, to the best of his ability and including all reasonable inquiries, the current information necessary to effect service of process on defendants Frishman, Shelton, and O'Brien, and shall provide such information to plaintiff.

b. Defendants' counsel shall contemporaneously file with the court a notice of compliance, or explanation of noncompliance with this directive.

2. Plaintiff's motion for an extension of time (Dkt. No. 58) within which to effect service of process upon defendants Frishman, Shelton, and O'Brien is granted in part, as follows:

a. Within ten (10) days after receipt of the information from defendants' counsel, plaintiff shall submit to the court the following documents necessary to effect service of process on defendants Frishman, Shelton, and O'Brien:

i. The attached Notice of Submission of Documents;

ii. Three completed USM-285 forms (one for each defendant);

iii. Four copies of the endorsed complaint filed August 10, 2010 (Dkt. No. 24);⁴ and

iv. One completed summons form.⁵

4 The court previously provided plaintiff with a copy of his 488-page file-endorsed complaint. (Dkt. No. 21, at 24.)

5 It is preferable that plaintiff use a copy of the summons previously served on the other defendants; alternatively, a new summons may be served.

b. Within the same deadline, if any of the requested information remains unavailable, plaintiff shall submit an affidavit explaining the omission, and may request that one or more of these defendants be dismissed from this action;

3. The undersigned will address defendants' motion to dismiss (Dkt. No. 38) in a separate order; and

4. The Clerk of Court is directed to send plaintiff three USM-285 forms, along with an instruction sheet, and a blank summons.

DATED: April 14, 2011

NOTICE OF SUBMISSION OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the court's order filed: ____________________:

OR

_____ completed summons form _____ completed USM-285 forms _____ copies of the August 10, 2010 Amended Complaint _____ Affidavit stating why this information is not available and/or requesting dismissal of one or more defendants ______________________________ ______________________________ Date Plaintiff