Fierro v. Ryan et al

Filing 45

ORDER that the Magistrate Judge's Report and Recommendation (Doc. 31 ) is accepted and adopted by the Court. IT IS FURTHER ORDERED that Plaintiff[']s Motion for Reconsideration (Doc. 28 ), construed as a motion for leave to file a second amended complaint, is granted and the Clerk of the Court is directed to file the Second Amended Complaint attached to Doc. 28. FURTHER ORDERED that Defendants Badilla, Houze, Molera, Pitrowsky, Stephan, Fizer, Quintero, Wiggin, Jackson, Tucker, Ryan, Luen, Morales, Rojas, Malachinski, Pratt, Merchant, Rioochi, Stark, Miller, Espinoza, Anderson, Shruff, Thompson, Brown, Stowell, Greeley, Lacrone, and Theodore are dismissed from this action. FURTHER ORDERED that Count Two of the Second Amended Com plaint is dismissed. FURTHER ORDERED that Defendants McCarville, Ochoa, Pruett, Forester, Mcoffy, Smith, Shuster, and Sanders shall respond to Count One of the Second Amended Complaint. FURTHER ORDERED that Defendants Veckcovic and Brower shall respo nd to Count Three of the Second Amended Complaint. FURTHER ORDERED that Defendants Nash and East shall respond to Count Four of the Second Amended Complaint. IT IS FURTHER ORDERED That the Clerk of Court is directed send Plaintiff a service packetinc luding the Second Amended Complaint and this Order, and both summons andrequest for waiver forms for Defendants McCarville, Ochoa, Pruett, Forester, Mcoffy, Smith, Shuster, Sanders, Veckcovic, Brower, Nash, and East. That Plaintiff shall complete and return the service packet to the Clerk of Court within 21 days of the date this Order. Plaintiff is advised that the United States Marshal will not provide service of process if Plaintiff fails to comply with the Court's Order.. Signed by Seni or Judge Paul G Rosenblatt on 3/10/2015. (Attachments: # 1 Service packet letter, # 2 Sample and 1st Dft service packet, # 3 2nd Defendant, # 4 3rd Defendant, # 5 4th Defendant, # 6 5th Defendant, # 7 6th Defendant, # 8 7th Defendant, # 9 8th Defendant, # 10 9th Defendant, # 11 10th Defendant, # 12 11th Defendant, # 13 12th Defendant)(KMG)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10

José Abel Fierro,
Plaintiff,

11
12
13
14

vs.
Charles L. Ryan, et al.,
Defendants.

15

)
)
)
)
)
)
)
)
)
)
)

No. CV-13-02173-PHX-PGR (BSB)
ORDER

16

Having reviewed de novo the Report and Recommendation of Magistrate

17

Judge Bade in light of the plaintiff’s Objections to the Magistrates’ Report and

18

Recommendations (Doc. 36), the Court concludes that the Magistrate Judge’s

19

recommendations should be adopted and that the plaintiff’s objections should be

20

overruled. Therefore,

21
22

IT IS ORDERED that the Magistrate Judge’s Report and Recommendation
(Doc. 31) is accepted and adopted by the Court.

23

IT IS FURTHER ORDERED that Plaintiff[‘]s Motion for Reconsideration (Doc.

24

28), construed as a motion for leave to file a second amended complaint, is granted

25

and the Clerk of the Court is directed to file the Second Amended Complaint

26

attached to Doc. 28.

1

IT IS FURTHER ORDERED that Defendants Badilla, Houze, Molera,

2

Pitrowsky, Stephan, Fizer, Quintero, Wiggin, Jackson, Tucker, Ryan, Luen, Morales,

3

Rojas, Malachinski, Pratt, Merchant, Rioochi, Stark, Miller, Espinoza, Anderson,

4

Shruff, Thompson, Brown, Stowell, Greeley, Lacrone, and Theodore are dismissed

5

from this action.

6
7

IT IS FURTHER ORDERED that Count Two of the Second Amended
Complaint is dismissed.

8

IT IS FURTHER ODERED that Defendants McCarville, Ochoa, Pruett,

9

Forester, Mcoffy, Smith, Shuster, and Sanders shall respond to Count One of the

10

Second Amended Complaint.

11
12
13
14

IT IS FURTHER ORDERED that Defendants Veckcovic and Brower shall
respond to Count Three of the Second Amended Complaint.
IT IS FURTHER ORDERED that Defendants Nash and East shall respond to
Count Four of the Second Amended Complaint.

15

IT IS FURTHER ORDERED as follows:

16

(1)

That the Clerk of Court is directed send Plaintiff a service packet

17

including the Second Amended Complaint and this Order, and both summons and

18

request for waiver forms for Defendants McCarville, Ochoa, Pruett, Forester, Mcoffy,

19

Smith, Shuster, Sanders, Veckcovic, Brower, Nash, and East.

20

(2)

That Plaintiff shall complete and return the service packet to the Clerk

21

of Court within 21 days of the date this Order. Plaintiff is advised that the United

22

States Marshal will not provide service of process if Plaintiff fails to comply with the

23

Court's Order.

24
25

(3)

That Plaintiff is warned that if he does not either obtain a waiver of

service of the summons or complete service of the Summons and Second Amended

26

-2-

1

Complaint on a Defendant within 120 days of the filing of the Second Amended

2

Complaint, the action may be dismissed as to each Defendant not served. See Fed.

3

R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i).

4
5
6

(4)

That the United States Marshal is directed to retain the Summons, a

copy of the Second Amended Complaint, and a copy of this Order for future use.
(5)

That the United States Marshal is directed to notify Defendants of the

7

commencement of this action and request waiver of service of the summons

8

pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to

9

Defendants must include a copy of this Order. The Marshal must immediately file

10

signed waivers of service of the summons. If a waiver of service of summons is

11

returned as undeliverable or is not returned by a Defendant within 30 days from the

12

date the request for waiver was sent by the Marshal, the Marshal must:

13

(a) personally serve copies of the Summons, Second Amended Complaint,

14

and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal

15

Rules of Civil Procedure; and

16

(b) within 10 days after personal service is effected, file the return of

17

service for Defendant, along with evidence of the attempt to secure a

18

waiver of service of the summons and of the costs subsequently

19

incurred in effecting service upon Defendant. The costs of service must

20

be enumerated on the return of service form (USM-285) and must

21

include the costs incurred by the Marshal for photocopying additional

22

copies of the Summons, First Amended Complaint, or this Order and

23

for preparing new process receipt and return forms (USM-285), if

24

required. Costs of service will be taxed against the personally served

25

Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil

26

-3-

1

Procedure, unless otherwise ordered by the Court.

2

(6)

That a Defendant who agrees to waive service of the Summons and

3

Second Amended Complaint must return the signed waiver forms to the United

4

States Marshal, not the Plaintiff.

5

(7)

That Defendants shall answer the Second Amended Complaint or

6

otherwise respond by appropriate motion within the time provided by the applicable

7

provisions of Rule 12(a) of the Federal Rules of Civil Procedure.

8

(8)

That any answer or response must state the specific Defendant by

9

name on whose behalf it is filed. The Court may strike any answer, response, or

10

other motion or paper that does not identify the specific Defendant by name on

11

whose behalf it is filed.

12

DATED this 10th day of March, 2015.

13
14
15
16
17
18
19
20
21
22
23
24
25
26

-4-