Harrison v. Adams, et al

Filing 238

ORDER REJECTING 232 FINDINGS AND RECOMMENDATIONS to Dismiss Defendants Zakari, Bastianon, Edmonds, and Raygoza for Insufficient Information to Effect Service of Process; ORDER Discharging March 17, 2015 Order to Show Cause; ORDER Requiring Defendant CDCR to Provide First, Middle, and Last Names of Certain Defendants to Plaintiff within 30 Days signed by District Judge Anthony W. Ishii on 05/20/2015. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL D. HARRISON, 12 13 14 Plaintiff, v. 15 16 T. MOORE, et al., 17 Defendants. Case No. 1:08-cv-1065-AWI-MJS (PC) ORDER REJECTING FINDINGS AND RECOMMENDATION TO DISMISS DEFENDANTS ZAKARI, BASTIANON, EDMONDS, AND RAYGOZA FOR INSUFFICIENT INFORMATION TO EFFECT SERVICE OF PROCESS (ECF No. 232) ORDER DISCHARGING MARCH 17, 2015 ORDER TO SHOW CAUSE (ECF No. 227) 18 ORDER REQUIRING DEFENDANT CDCR TO PROVIDE FIRST, MIDDLE, AND LAST NAMES OF CERTAIN DEFENDANTS TO PLAINTIFF WITHIN 30 DAYS 19 20 21 22 23 24 25 26 27 28 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 28 U.S.C. § 1983. The action proceeds on Plaintiff’s Eighth Amendment claims against numerous defendants. (ECF No. 160.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The Magistrate Judge issued an Order to Show Cause why certain defendants should not be dismissed for failure to serve process. (ECF No. 227). Plaintiff failed to respond. As a result, on April 28, 2015, the Magistrate Judge issued Findings and Recommendations to dismiss Defendants Zakari, Bastianon, Edmonds, and Raygoza because they had not been served and all avenues to locate and serve them had been exhausted. (ECF No. 232.) Plaintiff filed objections, claiming he had not received the Court’s second motion to show cause (ECF No. 227) why these defendants should not be dismissed. Plaintiff further contends that Defendants refused to provide information regarding the first and middle names and address of the above-listed unserved Defendants (ECF No. 234.), despite the Magistrate Judge’s order requiring Defendants to provide the names of those defendants to Plaintiff (and, in the alternative, providing CDCR the opportunity to articulate more concrete privacy concerns that would justify disclosure of the names and addresses to the United States Marshal Service rather than defendant) (ECF No. 199). That objection is well taken. If Defendants failed to respond to Plaintiff’s Interrogatory #3, seeking the correct spelling of all defendants first and middle names, then Plaintiff would have good cause to have not effected service on those defendants. In order to quickly dispose of this issue, Defendant CDCR will be ordered to provide to Plaintiff the first, middle, and last names of Defendants Zakari, Bastianon, Edmonds, and Raygoza within thirty days of the date of this order. Proof of compliance with this order must be filed with the Clerk of the Court. The Magistrate Judge noted that CDCR may object to such a disclosure as implicating security concerns for prison personnel. If that is the case, Defendant CDCR may submit an application for relief from this order within fourteen days of the date of this order, articulating the basis of the objection and requesting authorization to submit the first, middle, and last names as well as the last known address of the unserved defendants to the Marshal Service. Defendant CDCR may seek relief from this order if it has already complied with 28 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 the Magistrate Judge’s order compelling it to provide information to Defendant (or such information is not within CDCR’s control). If that is the case, Defendant CDCR shall submit evidence to substantiate that fact within fourteen days of the date of this order. In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de novo review of the case. Based on the foregoing, the Court finds that the April 28, 2015 Findings and Recommendations cannot be adopted. Accordingly, it is HEREBY ORDERED that: 1. The Court respectfully declines to adopt the findings and recommendations (ECF No. 232), filed April 28, 2015; 2. Defendant CDCR is ordered to provide the first, middle, and last names of Defendants Zakari, Bastianon, Edmonds, and Raygoza to Plaintiff within 30 days of the date of this order. Proof of compliance with this order must be filed with the Clerk of the Court; 3. The order to show cause issued on March 17, 2015, is hereby discharged, with the reservation that the unserved defendants will be dismissed without further notice if the Court determines that Defendant CDCR did, in fact, submit the first, middle, and last names of those defendants to Plaintiff in compliance with the Magistrate Judge’s August 19, 2014 order, compelling such disclosure; 4. Plaintiff is ordered to effect service on the unserved defendants by way of the Marshal Service within fourteen days of Defendant CDCR providing the names of the unserved defendants, and in no event later than sixty days after the date of this order. 24 25 26 27 IT IS SO ORDERED. Dated: May 20, 2015 SENIOR DISTRICT JUDGE 28 3

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