Fisher v. Director of CDC, et. al.

Filing 65

ORDER denying 64 Motion to vacate signed by Magistrate Judge Carolyn K. Delaney on 04/16/12. Plaintiff has 30 days from the date of this order in which to submit the completed serviced documents necessary to prosecute this case. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SEAN C. FISHER

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Plaintiff,

No. CIV S-05-2217 MCE CKD P

vs.
DIRECTOR OF CDC, et al.
Defendant.

ORDER
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Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. §

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1983. On June 22, 2010, the Ninth Circuit reversed in part this court’s dismissal of the amended

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complaint, on the basis that the court had not addressed plaintiff’s claims that he was denied

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access to the prison grievance process and that he was retaliated against for filing grievances.

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The Ninth Circuit remanded the case to this court for consideration of those claims.

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On November 18, 2011, the court considered all of the claims mentioned in the

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Ninth Circuit’s order and ruled that service is appropriate on some, though not all, of them.

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Specifically, the court found that plaintiff had adequately alleged a claim for retaliation against

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defendants Briddle and Davey but had not adequately alleged a claim that his access to the courts

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had been denied. The court ordered the Clerk of Court to send plaintiff the required service

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documents for him to complete and return to the court so that he could proceed on his retaliation
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claim. Instead of completing that necessary step in the prosecution of his own case, however,

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plaintiff filed a motion to reconsider the service order, arguing that the magistrate judge did not

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comply with the Ninth Circuit’s order. The district judge assigned to this case denied that

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motion.

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Now, plaintiff has filed a motion to vacate the service order of November 18,

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arguing for the second time that the magistrate judge did not comply with the Ninth Circuit’s

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order. The motion is baseless and will be denied.

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The court’s service order gave plaintiff thirty days in which to return the
completed service documents – documents without which this case cannot proceed. Almost five

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months have now passed, and instead of following the court’s order, he has wasted his and the

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court’s time revisiting its merits. In so doing, plaintiff has delayed the efficient advancement of

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his own case, even though he has on a previous occasion requested its proceedings be expedited.

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See Docket No. 58. Plaintiff’s frivolous tactics imperil the survival of his claims. The court will

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allow him an additional thirty days in which to comply with the service order of November 18,

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2011, by submitting the completed service documents necessary to prosecute his case. His

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failure to do so will result in a recommendation that this matter be dismissed for failure to

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prosecute and for unnecessary delay. See Fed. R. Civ. P. 41(b), 11(b). Outside a showing of

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extraordinary circumstances, the court will not grant any further extension of time in which to

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submit the completed service documents.

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Accordingly, IT IS HEREBY ORDERED that the motion to vacate (Docket No.

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64) is denied. Plaintiff has thirty days from the date of this order in which to submit the

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completed service documents necessary to prosecute his case. His failure to do so will result in a

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recommendation that this matter be dismissed for failure to prosecute and for unnecessary delay.

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See Fed. R. Civ. P. 41(b), 11(b).

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Dated: April 16, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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fish2217.ord2

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