Silvis v. California Department of Corrections et al

Filing 73

ORDER REQUIRING Defendants' Counsel to File a Response to Plaintiff's 8 Amended Complaint on Behalf of Defendants Smith and Davis, or Otherwise File a Report on the Status of Representation; Thirty Day Deadline signed by Magistrate Judge Gary S. Austin on 11/12/2009. Response to Amended Complaint or Status Report due by 12/16/2009. (Sant Agata, S)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 Defendants. 14 THIRTY-DAY DEADLINE 15 16 This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff John Robert Silvis, 17 a civil detainee proceeding pro se and in forma pauperis. This action is proceeding on Plaintiff's 18 amended complaint, filed June 25, 2007, against Defendants Davis, Smith, Perry, Rees, Weed, and 19 Pappenfus for violation of the Eighth Amendment arising out of Plaintiff's medical care while he 20 was incarcerated at Avenal State Prison. 21 On June 29, 2009, counsel for Defendants Smith, Perry, Rees, Weed, and Pappenfus filed 22 a request for an extension of time to file a motion on behalf of Smith and potential client Davis. In 23 the request, counsel stated that she had been contacted by the California Department of Corrections 24 and Rehabilitation regarding representation of Smith and Davis. Counsel had been in contact with 25 Smith and was at that time still trying to contact Davis. 26 Although counsel noted that it appeared neither defendant had been served with the summons 27 and complaint, waivers of service were sent to both defendants in accordance with Rule 4(d). Fed. 28 1 / (Doc. 69) v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., JOHN ROBERT SILVIS, Plaintiff, CASE NO. 1:07-cv-00332-LJO-GSA PC ORDER REQUIRING DEFENDANTS' COUNSEL TO FILE A RESPONSE TO PLAINTIFF'S AMENDED COMPLAINT ON BEHALF OF DEFENDANTS SMITH AND DAVIS, OR OTHERWISE FILE A REPORT ON THE STATUS OF REPRESENTATION

UNITED STATES DISTRICT COURT

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R. Civ. P. 4(d). It appears the waivers were received by CDCR, which triggered the inquiry into representation. Under the circumstances, personal service should not be necessary and if personal service is ordered by the Court, costs will be taxed against Smith and Davis. Fed. R. Civ. P. 4(d)(2). Such a situation may prove to be particularly costly for Defendant Davis, given that it appears he resides out of state.1 More than four months have passed, and neither Smith nor Davis has made an appearance in this action. Accordingly, it is HEREBY ORDERED that within thirty (30) days from the date of service of this order, counsel for Defendants shall either file a response to the amended complaint on behalf of Defendants Smith and Davis, or file a status report providing an update as to the status of her representation of Defendants.2,3

IT IS SO ORDERED. Dated: 6i0kij

November 12, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

The Court takes judicial notice of Dr. Davis's declaration in case number 1:06-cv-00092-AW I -S M S PC. ( D o c . 59-3.) The issuance of this order operates as an extension of time to respond in the event that Smith and/or Davis a r e represented by counsel but neglected to file an answer or a motion.
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Dependent upon the response to this order, the Court may need to issue an amended scheduling order.

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