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