De Luca v. Moreno

Filing 12

ORDER VACATING 9 FINDINGS AND RECOMMENDATIONS; ORDER DIRECTING Clerk to Re-Serve the 5 Screening Order on Plaintiff and Forward Service Documents to Plaintiff for Completion and Return within Thirty Days signed by Magistrate Judge Erica P. Grosjean on 6/23/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DINO DE LUCA,
Plaintiff,

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v.
FRANCISCO MORENO,
Defendant.

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1:16-cv-01887-DAD-EPG (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS
(ECF NO. 9)
ORDER DIRECTING CLERK TO RESERVE THE SCREENING ORDER (ECF
NO. 5) ON PLAINTIFF AND FORWARD
SERVICE DOCUMENTS TO PLAINTIFF
FOR COMPLETION AND RETURN
WITHIN THIRTY DAYS

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Dino De Luca (“Plaintiff”) was a person detained by the State of California under civil

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process. He is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42

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U.S.C. § 1983.

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On December 19, 2016, Plaintiff filed his complaint. (ECF No. 1). On January 12,

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2017, the Court screened Plaintiff’s complaint and found that Plaintiff stated a cognizable claim

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against defendant Francisco Moreno for excessive force in violation of the Fourteenth

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Amendment. (ECF No. 5). The Court also found service of the complaint appropriate, and

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sent Plaintiff service documents that Plaintiff was to complete and return within thirty days

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from the date of service of the screening order. (Id.). However, Plaintiff did not return the

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service documents within the required time period, and failed to keep the Court informed of his

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current address, so the Court issued findings and recommendations, recommending that this

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case be dismissed, without prejudice, for Plaintiff’s failure to comply with a court order and

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failure to prosecute.

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While Plaintiff still has not submitted the service documents, it appears that Plaintiff is

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now in Fresno County Jail (ECF No. 11). As Plaintiff did not receive the findings and
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recommendations, and as Plaintiff may not have received the screening order or the service

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documents, the Court will vacate its findings and recommendations and order that the screening

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order and service documents be resent to Plaintiff.

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complete and return the service documents again, the Court will issue findings and

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recommendations to the assigned district judge, recommending that the case be dismissed

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without prejudice for failure to prosecute and failure to comply with a court order.

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However, if Plaintiff fails to timely

Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:

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1. The findings and recommendations the Court issued on May 12, 2017 (ECF No.

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9) are VACATED;

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2. Plaintiff has thirty days from the date of service of this order to complete and

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return the service documents;

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3. The Clerk of Court is directed to send Plaintiff a copy of the screening order

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entered on January 12, 2017 (ECF No. 5); and

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4. The Clerk of Court is directed to send Plaintiff one (1) USM-285 form, one (1)

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summons, a Notice of Submission of Documents form, an instruction sheet, and

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a copy of the complaint dated December 19, 2016 (ECF No. 1).

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IT IS SO ORDERED.
Dated:

June 23, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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