Barrett v. Cate et al

Filing 35

ORDER GRANTING 30 Request for Assistance in Locating Defendant; ORDER Directing the Clerk of the Court to Forward this Orer to the Legal Affairs Divsion of the CDCR, signed by Magistrate Judge Jennifer L. Thurston on 5/31/11. (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT E. BARRETT,

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Case No. 1:09-cv-01741 LJO JLT (PC)

Plaintiff,

ORDER GRANTING PLAINTIFF’S
REQUEST FOR ASSISTANCE IN
LOCATING DEFENDANT

v.

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MATTHEW CATE, et al.,

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Defendants.

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ORDER DIRECTING THE CLERK OF THE
COURT TO FORWARD THIS ORDER TO
THE LEGAL AFFAIRS DIVISION OF THE
CDCR
/
(Doc. 30)

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C.

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§ 1983. On February 25, 2011, the United States Marshal returned service documents addressed to

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Defendant McGinnis unexecuted. (Doc. 21.) On March 2, 2011, the Court ordered Plaintiff to provide

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additional information regarding Defendant McGinnis. (Doc. 22.) In response, on April 22, 2011,

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Plaintiff filed a motion for assistance in obtaining information regarding Defendant McGinnis for the

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purpose of effectuating service. (Doc. 30.) Defendants subsequently opposed the motion, arguing that:

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(1) Plaintiff cites no authority for requiring “correction department defendants” to assist Plaintiff in

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effectuating service; and (2) Plaintiff appears to have erroneously confused Defendant McGinnis with

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Defendant McGuinness, who is already a party to this action. (Doc. 31 at 1-2.)

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The Court addresses Defendants’ second argument first. From the operative pleadings, it does

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not appear that Plaintiff erroneously confused Dr. McGinnis with Dr. McGuinness. Plaintiff explicitly
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alleges that Dr. McGinnis examined him while he was confined at California State Prison Corcoran,

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whereas Dr. McGuinness examined him while he was confined at California Medical Facility. (Doc.

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17 at 4-5.) Thus, Plaintiff’s clear position is that Dr. McGinnis and Dr. McGuinness are two entirely

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different individuals.

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As to Defendants’ first argument, this Court has consistently recognized the role the California

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Department of Corrections and Rehabilitation must play in assisting proper service of process on prison

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officials in light of a prisoner’s incarcerated status and the sensitivity of all information pertaining to

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prison officials. Therefore, while the Court will not require Defendants themselves to assist in the

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location of Defendant McGinnis, the Court will seek the assistance of the Legal Affairs Division of the

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California Department of Corrections and Rehabilitation.

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Accordingly, it is HEREBY ORDERED that:

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1.

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The Clerk of the Court is directed to forward a copy of this order to the Legal Affairs
Division of the California Department of Corrections and Rehabilitation.

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The Court requests that, within sixty (60) days of the date of this order, the Legal Affairs

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Division provide a current address for William McGinnis where service of process may

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be effectuated. Plaintiff indicates that William McGinnis worked at California State

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Prison, Corcoran in August 2006.

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3.

If an address can be ascertained, the Legal Affairs Division is directed to provide the

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information to the Court under seal. The Court will then order the United States Marshal

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to re-initiate service at that address.

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4.

If an address cannot be ascertained, the Legal Affairs Division is directed to furnish a

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written explanation to the Court as to why William McGinnis could not be located and

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what efforts were taken in this endeavor.

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IT IS SO ORDERED.

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Dated: May 31, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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