Martinez v. Tilton et al

Filing 29

ORDER DIRECTING PLAINTIFF TO SUBMIT PRISON RECORD BEARING DEFENDANT MATTHEWS NAME re 26 Summons Returned Unexecuted signed by Magistrate Judge Sheila K. Oberto on 5/31/2013. (Filing Deadline: 7/3/2013). (Lundstrom, T)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

JOHN R. MARTINEZ,

10

Plaintiff,

11
12

CASE NO. 1:10-cv-01501-SKO PC
ORDER DIRECTING PLAINTIFF TO SUBMIT
PRISON RECORD BEARING DEFENDANT
MATTHEWS’ NAME

v.
JAMES TILTON, et al.,

13

(Doc. 26)

Defendants.

THIRTY-DAY DEADLINE
/

14
15

Plaintiff John R. Martinez filed this civil rights action pursuant to 42 U.S.C. § 1983 on

16

August 19, 2010. This action is proceeding against Defendants Adams, Dicks, Hubach, Jennings,

17

Payne, Rickman, and Matthews for allegedly violating Plaintiff’s rights while he was incarcerated

18

at California State Prison-Corcoran. Defendants Adams, Dicks, Hubach, Jennings, Payne, and

19

Rickman have filed a motion to dismiss, but Defendant Matthews has not yet been identified and

20

served.

21

On May 16, 2013, the United States Marshal returned the USM-285 form for Defendant

22

Matthews, unexecuted. (Doc. 26.) An attached memo from a litigation technician at High Desert

23

State Prison states that there is no record of an employee named H. D. Matthew or Matthews. The

24

Court is not persuaded that Defendant Matthews, who is or was a lieutenant, cannot be identified and

25

it is not clear from the USM-285 form how the Litigation Office at High Desert State Prison became

26

involved in the attempt to serve Lt. Matthews at Corcoran. Furthermore, the defendant is Lt. D.

27

Matthews rather than an H. D. Matthews. Based on these concerns, Plaintiff is entitled to re-service

28

on Defendant Matthews. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
1

1

However, in the interest of avoiding any further unnecessary expenditure of resources,

2

Plaintiff is requested to first submit to the Court a prison record bearing Defendant Matthews’ name,

3

if one is available. If Plaintiff does not have any prison records bearing Defendant Matthews’ name,

4

he shall so notify the Court.

5

If Defendants Adams, Dicks, Hubach, Jennings, Payne, and Rickman’s counsel is willing

6

voluntarily assist in this matter, any assistance which eliminates the need for the Marshal to initiate

7

re-service would be appreciated.

8

Accordingly, based on the foregoing, it is HEREBY ORDERED that:

9

1.

10

Within thirty (30) days from the date of service of this order, Plaintiff shall file a
prison record bearing Defendant Matthews’ name; and

11

2.

12

If Plaintiff does not have any prison records bearing Defendant Matthews’ name, he
shall so notify the Court within thirty days.

13
14

IT IS SO ORDERED.

15

Dated:
i0d3h8

May 31, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
2