Love v. Yates et al

Filing 35

ORDER DENYING 23 Plaintiff's Motion for Removal of Exhibits; ORDER DENYING as premature 27 , 29 , 33 Plaintiff's Motion for Speedy Trial and Motions for Order to Serve Complaint; ORDER ADDRESSING 32 Plaintiff's Motion for Clarification, signed by Magistrate Judge Barbara A. McAuliffe on 12/21/2011. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CARL R. LOVE,

CASE NO. 1:10-cv-02304-BAM PC

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Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION FOR
REMOVAL OF EXHIBITS (ECF No. 23)

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v.
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ORDER DENYING PLAINTIFF’S MOTION FOR
SPEEDY TRIAL AND MOTIONS FOR ORDER
TO SERVE COMPLAINT (ECF Nos. 27, 29, 33)

JAMES A YATES, et al.,
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Defendants.
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ORDER ADDRESSING PLAINTIFF’S MOTION
FOR CLARIFICATION (ECF No. 32)

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I.

Procedural History

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Plaintiff Carl R. Love (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint in this action

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on December 10, 2010. On March 23, 2011, Plaintiff filed a motion for a court order giving him

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access to the law library and a motion to compel. An order denying Plaintiff’s motion to compel as

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premature was issued on May 16, 2011. An order denying Plaintiff’s motion for a preliminary

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injunction was issued on May 17, 2011.

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On May 26, 2011, Plaintiff filed a motion to amend the complaint due to having exhausted

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administrative remedies. An order to show cause why this action should not be dismissed for failure

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to exhaust administrative remedies issued on June 1, 2011. Plaintiff filed a motion for appointment

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of counsel and response to the order to show cause on June 21, 2011. The motion for appointment

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of counsel was denied on June 23, 2011. Due to Plaintiff alleging a delay in prison officials

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responding to his first level appeal, the order to show cause was vacated and his motion to amend
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was denied as unnecessary on June 24, 2011.

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On June 21, 2011, Plaintiff filed a second motion to amend the complaint, which was denied

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as unnecessary on July 5, 2011. On July 11, 2011, Plaintiff filed a first amended complaint and a

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motion for removal of exhibits from the complaint. On August 4, 2011, Plaintiff filed a civil cover

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sheet. On August 24, 2011, Plaintiff filed a motion for speedy trial. On October 17, 2011, Plaintiff

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filed a motion for an order to serve the complaint and summons. On November 11, 2011 Plaintiff

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filed a motion to amend the first amended complaint.1 On November 30, 2011, Plaintiff filed a

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motion for clarification and a second motion for an order to serve the complaint and summons. On

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December 9, 2011, Plaintiff filed a petition for a writ of mandamus, which will be forwarded to the

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Ninth Circuit.

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II.

Motion for Removal of Exhibits From Complaint

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Plaintiff requests that the exhibits attached to his complaint be removed and attached to his

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first amended complaint. Any exhibits attached to the complaint must be incorporated by reference.

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Fed. R. Civ. Pro. 10(c). Thus, any exhibits attached to the amended complaint must be specifically

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referenced. For example, Plaintiff must state “see Exhibit A” or something similar in order to direct

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the Court to the specific exhibit Plaintiff is referencing. Further, if the exhibit consists of more than

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one page, Plaintiff must reference the specific page of the exhibit (i.e. “See Exhibit A, page 3”).

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Plaintiff’s amended complaint fails to reference any exhibits and the Court will not wade through

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exhibits to determine whether cognizable claims are, or might be able to be stated.

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For screening purposes, the Court must assume that Plaintiff’s factual allegations are true.

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Therefore, it is generally unnecessary for Plaintiff to submit exhibits in support of the allegations in

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a complaint. Plaintiff’s motion for an order to remove exhibits and attache them to his first amended

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complaint, filed July 11, 2011, is denied.

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III.

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Motion for Speedy Trial and Motion for Service of Complaint and Summons
Plaintiff’s motions, filed August 24, 2011; October 17, 2011; and November 30, 2011, seek

to have the summons and complaint served upon defendants.

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Plaintiff’s motion to amend the complaint will be addressed at a later date.

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Initially, Plaintiff is advised that the Speedy Trial Act does not apply to civil actions. 18 U.S.C.

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§3161. To the extent that Plaintiff is requesting the court screen his complaint, the Court is

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required to screen complaints brought by prisoners seeking relief against a governmental entity or

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officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court screens

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complaints in the order in which they are filed and strives to avoid delays whenever possible.

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However, there are hundreds of prisoner civil rights cases presently pending before the Court,

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and delays are inevitable despite the Court’s best efforts. Plaintiff’s complaint will be screened

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in due course.

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The Court will direct the United States Marshal to serve the complaint only after it has

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determined that the complaint contains cognizable claims for relief against the named defendants.

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Until the Court has screened Plaintiff’s complaint and found cognizable claims, any request for

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service by the Marshal is premature and will be denied. Since Plaintiff’s complaint is pending

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screening the motions to serve the complaint and summons are denied.

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Plaintiff’s August 24, 2011 motion seeks a speedy trial. The Speedy Trial Act does not

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apply to civil actions. 18 U.S.C. §3161.

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IV.

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Motion for Clarification
Plaintiff is advised that after his complaint is screened, if any claims are found to be

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cognizable, he will receive service documents to complete and return to the Court. Once those

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documents are returned an order directing service by the United States Marshall will issue. The

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United States Marshall will then be given 120 days within which to serve the complaint.

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V.

Order

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff’s motion for removal of exhibits, filed July 11, 2011, is DENIED;

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Plaintiff’s motion for a speedy trial, filed August 24, 2011, is DENIED; and

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Plaintiff’s motion for order to serve summons and complaint, filed October 17,
2011 and November 30, 2011, are DENIED, as premature.

IT IS SO ORDERED.
Dated:
10c20k

December 21, 2011

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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