Kirchner v. Biter et al

Filing 36

ORDER GRANTING Plaintiff's Motion for Late Filing 35 and VACATING Findings and Recommendations 33 signed by Magistrate Judge Barbara A. McAuliffe on 3/25/2021. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KRISTOPHER KIRCHNER, 12 13 14 15 Plaintiff, v. BITER, et al., Defendants. Case No. 1:18-cv-00516-AWI-BAM (PC) ORDER GRANTING PLAINTIFF’S MOTION FOR LATE FILING (ECF No. 35) ORDER VACATING FINDINGS AND RECOMMENDATIONS (ECF No. 33) 16 17 Plaintiff Kristopher Kirchner (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 19 Plaintiff’s first amended complaint for Fourteenth Amendment due process claims against 20 Defendants Henderson, Harden, Diaz, and Perez arising from Plaintiff’s disciplinary proceedings. 21 On December 16, 2020, the Court issued an order directing service on Defendants 22 Henderson, Harden, Diaz, and Perez in this case under the Court’s E-Service pilot program for 23 civil rights cases for the Eastern District of California. (ECF No. 23.) The order included the 24 following information regarding Defendant Perez: “Investigative Employee J Perez; KVSP; 25 approximately March to June 2014.” (Id. at 2.) The same date, the Court received information 26 that there was not enough information to identify Defendant J. Perez. 27 28 On December 28, 2020, the Court issued an order requiring Plaintiff to show cause, within thirty days of service of that order, why Defendant Perez should not be dismissed from this 1 1 action. (ECF No. 27.) In that order, Plaintiff was warned that the failure to respond or failure to 2 show cause would result in the dismissal of Defendant Perez from this action due to Plaintiff’s 3 failure to serve process pursuant to Federal Rule of Civil Procedure 4(m). (Id. at 3.) 4 Following Plaintiff’s failure to respond, on February 17, 2021, the Court issued findings 5 and recommendations to dismiss Defendant Perez from this action, without prejudice, for failure 6 to serve process. (ECF No. 33.) In lieu of objections, on February 22, 2021, Plaintiff filed a 7 motion to file a late response to the Court’s order to show cause, together with his response to the 8 order to show cause. (ECF Nos. 34, 35.) 9 In his motion, Plaintiff states that he originally filed his response to the Court’s order to 10 show cause on January 18, 2021, but it was returned to Plaintiff on February 16, 2021 as 11 undeliverable (address not known), although he used the return address on the envelope from the 12 Court. (ECF No. 35.) Plaintiff therefore requests that he be allowed to file his response late, and 13 included his original response to the order to show cause. (Id.) Plaintiff’s original response 14 includes additional identifying information for Defendant J. Perez that Plaintiff hopes will help 15 determine Defendant Perez’s identity. (ECF No. 34.) Specifically, Plaintiff states that on May 16 15, 2014, Defendant J. Perez was assigned as Plaintiff’s Investigative Employee for Rule 17 Violation Log# FA-14-04-024 at Kern Valley State Prison. Plaintiff has also attached a copy of 18 the Investigative Report signed by Defendant Perez. Plaintiff further states that Defendant Perez 19 should have signed in on the F.L.S.A. (paysheet) for Second Watch on May 30, 2014, and the 20 Kern Valley Litigation Office should be able to compare that signature to the signature on the 21 Investigative Report. (Id.) 22 The Court finds that Plaintiff has provided good cause for the late filing of his response to 23 the order to show cause, and therefore the motion to file a late response is granted. Further, as 24 Plaintiff has provided additional identifying information for Defendant Perez, the Court finds it 25 appropriate to vacate the pending findings and recommendations to dismiss Defendant Perez for 26 failure to serve. 27 28 The Court will issue a new service order including the additional information regarding Defendant Perez by separate order. 2 1 Based on the foregoing, IT IS HEREBY ORDERED as follows: 2 1. Plaintiff’s motion for late filing, (ECF No. 35), is GRANTED; 3 2. The findings and recommendations issued on February 17, 2021 (ECF No. 33), are 4 5 VACATED; and 3. The Court will issue a new service order for Defendant Perez by separate order. 6 7 8 9 IT IS SO ORDERED. Dated: /s/ Barbara February 25, 2021 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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