Baldhosky v. Hubbard et al

Filing 60

ORDER Granting 55 Motion to Quash Waiver of Service on Defendant Nguyen, signed by Magistrate Judge Michael J. Seng on 12/5/16. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAYMOND BALDHOSKY ,

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Plaintiff,

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v.
SUSAN HUBBARD, et al.,

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CASE NO. 1:12-cv-01200-LJO-MJS (PC)
ORDER GRANTING MOTION TO QUASH
WAIVER OF SERVICE ON DEFENDANT
NGUYEN
(ECF No. 55)

Defendants.

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I.

Procedural History

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Plaintiff is a former state prisoner proceeding pro se in this civil rights action

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brought pursuant to 42 U.S.C. § 1983. On May 4, 2016, the Court screened Plaintiff’s

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third amended complaint and found that it stated cognizable claims against ten

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defendants: Dr. Gonzalez, Dr. Nguyen, Dr. Metts, Physician’s Assistant L. Peters,

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Physician’s Assistant T. Byers, Nurse T. Grossi, Nurse Ruff, Nurse Indindes, and Nurse

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Amanda Kaylor. (ECF No. 31.)

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On May 12, 2016, the United States Marshals Service was ordered to initiate

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service on the defendants. (ECF No. 33.) Dr. Duc Nguyen waived service on behalf of

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Defendant Nguyen. (ECF No. 51.)

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Before the Court is Dr. Nguyen’s pro se motion to quash service on the grounds

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that he mistakenly waived service and he is not the Defendant Nguyen named in the

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complaint. (ECF No. 55.) Plaintiff filed no opposition and the time for doing so has

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passed. Local Rule 230(l).

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I.

Legal Standard

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Service may be effectuated by meeting the state requirements for service or by

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“delivering a copy of the summons and complaint to the individual personally . . . leaving

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a copy of each at the individual’s dwelling . . . or delivering a copy of each to an agent

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authorized by appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e).

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California allows for service to be accomplished by personal delivery or by leaving a

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copy of the summons and complaint with a qualified individual at the person's home,

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business, or usual mailing address and subsequently mailing a copy to the person at

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that address. Cal. Code Civ. Proc. 415.10, 415.20 (2015).

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Once challenged, a plaintiff bears the burden of establishing that service was

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proper. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004).

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II.

Discussion

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Dr. Nguyen states that he has not worked at the California Substance Abuse

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Treatment Facility since early 2004. Plaintiff does not contest these assertions. The

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incidents at issue in this action occurred at the California Substance Abuse Treatment

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Facility in 2009 and 2010. Accordingly, it appears that Dr. Duc Nguyen in not a proper

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defendant in this action. Plaintiff has not shown that service was properly accomplished

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upon the correct Defendant Nguyen. The motion to quash service and Dr. Duc Nguyen’s

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waiver of service will be granted.

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III.

Conclusion and Order

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Based on the foregoing, the motion to quash service (ECF No. 55) is HEREBY

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GRANTED. Further efforts to serve the correct Defendant Nguyen will be discussed at

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the previously-set December 22, 2016 status conference regarding service.

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IT IS SO ORDERED.
Dated:

December 5, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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