Holt v. Stockman, et al

Filing 74

ORDER Signed by District Judge Mary H. Murguia on 2/12/2009. Plaintiff's Motion to Alter/Amend Order Finding Complaint States Claim to Include Defendants the Court Inadvertently Left Out for Service of Process of Summons and Complaint [35 ], 38 is GRANTED; Plaintiff's Motion for Extension of Time 39 is GRANTED; Clerk of Court DIRECTED to Forward Service Documents to Plaintiff for Completion and Return; Plainiff ORDERED to Return Completed Service Documents to Clerk of Court by 3/23/2009; Upon Receipt of Completed Service Documents from Plaintiff, Clerk of Court DIRECTED to Forward Documents to United States Marshal for Service of Process. (Arellano, S.)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Virgil E. Holt, Plaintiff, vs. D. G. Stockman, et al., Defendants.

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No. CV 1-04-6073-PHX-MHM ORDER

Pending before the Court is Plaintiff's Motion to Alter/Amend Order Finding Complaint States Claim to Include Defendants the Court Inadvertently Left Out for Service of Process of Summons and Complaint and USM 285 Forms (Doc. # # 35 & 38)1 and Plaintiff's Request (Motion) for Extension of Time (Doc. # 39). Plaintiff notes that on August 28, 2008, Judge Oliver Wanger issued an order (Doc. # 29) granting Plaintiff's Motion for Reconsideration and adopting in full Magistrate Judge William Wunderlich's June18, 2008 Findings and Recommendation to Dismiss Uncognizable Claims and Proceed on Cognizable Claims. In his June 18, 2008 order, the Magistrate Judge found that Plaintiff had stated colorable claims against certain named defendants. (Doc. # 20, pp. 17-18) However, in a subsequent order issued on September 3, 2008, directing Plaintiff to complete USM-285 forms, the Magistrate Judge omitted the names of some of the defendants listed in his prior order. (Doc. # 30) A
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It appears that Plaintiff filed this document twice.

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review of these orders reveals that the following defendants were inadvertently omitted from the September 3, 2008 order: Mr. Yamamoto D. D. Ortiz R. Leon M. T. Cisneros D. Bravo R. Lowden Does 2-13, 17, 18-25. Accordingly, in light if the foregoing, IT IS ORDERED granting Plaintiff's Motion to Alter/Amend Order Finding Complaint States Claim to Include Defendants the Court Inadvertently Left Out for Service of Process of Summons and Complaint and USM-285 Forms. (Doc. # # 35 & 38) IT IS FURTHER ORDERED that service is appropriate for the above named defendants. With respect to Does 2-13, 17, and 18-25, the Court notes that as a practical matter, it is impossible in most instances for the United States Marshal or his designee to serve a summons and complaint or amended complaint upon an anonymous defendant. IT IS FURTHER ORDERED directing the Clerk of the Court to send to Plaintiff six USM-285 forms, six summonses, a Notice of Submission of Documents form, an instruction sheet and a copy of the May 15, 2006 second amended complaint. IT IS FURTHER ORDERED that within 30 days from the date of this order, Plaintiff shall complete the Notice of Submission of Documents and submit the completed Notice to the Court with the following documents: (1) completed summonses, (2) one completed USM285 form for each defendant named above, and (3) seven copies of the endorsed second amended complaint filed on May 15, 2006. Plaintiff need not attempt service on defendants and need not request waiver of service. Upon the Court's receipt of the above-described documents,

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IT IS FURTHER ORDERED directing the Clerk of the Court to forward said documents to the United States Marshal. Upon the United States Marshal's receipt of said documents, IT IS FURTHER ORDERED directing the United States Marshal to serve the abovenamed defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs. IT IS FURTHER ORDERED granting Plaintiff's Motion for Extension of Time requesting 30 days from the date of this order to complete the service procedures listed above. (Doc. # 39) DATED this 12th day of February, 2009.

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