O'Keefe v. Cate

Full title: TIMOTHY O'KEEFE, Plaintiff, v. MATTHEW CATE, et al., Defendants.

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

Date published: Jul 17, 2012

2:11-cv-2659 KJM KJN P (E.D. Cal. Jul. 17, 2012)

Opinion

TIMOTHY O'KEEFE, Plaintiff, v. MATTHEW CATE, et al., Defendants. No. 2:11-cv-2659 KJM KJN P United States District Court, E.D. California. July 17, 2012

          ORDER

          KENDALL J. NEWMAN, Magistrate Judge.

         Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. On April 9, 2012, the court ordered the United States Marshal to serve the complaint on defendants. Process directed to defendants Chief Psychologist and Chief Psychiatrist was returned unserved because "there is not enough information" to process the requests.

         On May 11, 2012, the court granted plaintiff sixty days to provide additional information to serve defendants Chief Psychologist and Chief Psychiatrist. On June 18, 2012, plaintiff submitted USM-285 forms containing additional information for service of these defendants. Plaintiff identified the Chief Psychiatrist as Karen Higgins. Plaintiff identified the Chief Psychologist as Timothy Belavich. On June 26, 2012, the court ordered the United States Marshal to again attempt service of these defendants.

         The United States Marshal has since informed the court that plaintiff's USM-285 form identifies the Chief Psychologist as "Director of Mental Health Timothy Belavich." Based on the information provided by plaintiff, it appears that there is no person with the title of Chief Psychologist. In other words, Director of Mental Health Timothy Belavich is a new defendant. If plaintiff intends to name Director of Mental Health Timothy Belavich as a defendant, he must file a motion to amend and proposed amended complaint naming Director of Mental Health Timothy Belavich as a defendant.

         Because plaintiff has abandoned his claim against defendant Chief Psychologist, as no such person apparently exists, the undersigned orders this defendant dismissed. Fed.R.Civ.P. 41(a).

         Accordingly, IT IS HEREBY ORDERED that:

         1. The portion of the June 26, 2012 order directing the United States Marshal to serve Chief Psychologist Belavich is vacated; the United States Marshal shall proceed to serve Chief Psychiatrist Karen Higgins;

         2. Defendant Chief Psychologist is dismissed;

         3. If plaintiff intends to name Director of Mental Health Timothy Belavich as a defendant, he must file a motion to amend and proposed amended complaint naming Director of Mental Health Timothy Belavich as a defendant; and

         4. The Clerk of the Court is directed to serve a copy of this order on the United States Marshal.