Johnson v. Sisto et al

Filing 121

ORDER signed by Magistrate Judge Kendall J. Newman on 11/8/11 ORDERING that 102 Motion is partially granted; Deputy Attorney General William H. Downer shall take all steps necessary to assist the United States Marshal in locating an address for ser vice of process on defendant Alfredo Q. Noriega, M.D., and shall report to the court within twenty-one days whether he has been able to provide a valid address to the U.S. Marshal and, if not, why no address can be found. The U.S. Marshal shall main tain the confidentiality of any service address information provided by Deputy Attorney General Downer. Should an address be provided, the U.S. Marshal shall, upon receipt of that address, take all steps necessary to request a waiver of service and/or to personally serve defendant Noriega in accordance with the provisions of this courts April 5, 2011 order. The Clerk of the Court shall serve a copy of this order on the United States Marshal. (cc USM). (Dillon, 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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LACEDRIC JOHNSON,

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Plaintiff,

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vs.

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No. 2:08-cv-1609 KJM KJN P

D.K. SISTO, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel. On June 22, 2011,

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plaintiff’s motion to extend the discovery period to allow plaintiff to locate unserved defendants

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was denied without prejudice. (Dkt. No. 98.) On July 11, 2011, plaintiff sought reconsideratrion

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of that order. (Dkt. No. 102.) At present, service of process on defendant Noriega is at issue.

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All other defendants have been served with process, or been terminated from the case.

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Service of process was ordered on defendant Dr. Noriega on February 24, 2010.

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On August 18, 2010, service was returned unexecuted, noting that the waiver mailed to defendant

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Noriega at the California State Prison, Solano, was returned by the litigation coordinator with a

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note that defendant Noriega retired on August 8, 2009. (Dkt. No. 32-1.) On April 5, 2011,

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service of process on defendant Noriega was ordered at a new address in Bakersfield, California,

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provided by plaintiff. (Dkt. No. 83.) On May 24, 2011, service of process was returned as
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executed. (Dkt. No. 92.) However, appended to the waiver form signed by a person named

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“Alfred Y. Noriega,” was a letter indicating that he has “no relationship, acquaintance,

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interaction or communication” with any of the parties listed in the complaint, and that he has

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never been employed by the State of California or any federal, state or local law enforcement or

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correction agency.” (Id.)

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The California Board of Medical Quality Assurance lists a doctor by the name of

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Alfredo Quicho Noriega, M.D., at California State Prison, P.O. Box 4000, Vacaville, California

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95696-4000, County of Solano.1 Dr. Noriega was issued a license on May 7, 1990, but the

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license expired on August 31, 2009.

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Thus, it appears that “Alfred Y. Noriega” is not the doctor defendant plaintiff

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named in the Second Amended Complaint. Moreover, it appears defendant Alfredo Q. Noriega

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may have retired from state service.

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Pursuant to this court’s prior order, if defendant did not return a waiver of service

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of summons within sixty days from the date of mailing the request for waiver, the United States

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Marshal was to personally serve process on defendant Noriega, “command all necessary

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assistance from the California Department of Corrections and Rehabilitation (CDCR) to execute

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this order” and “maintain the confidentiality of all information provided by the CDCR pursuant

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to” that order. (Dkt. No. 83.) Because it appears defendant Noriega has retired, accessing the

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CDCR locator is unhelpful. However, if defendant Noriega is retired from state service, state

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officials should have defendant Noriega’s current address, or be able to obtain his current

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address.

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Medical Board of California, License Lookup System, http://www2.mbc.ca.gov/
LicenseLookupSystem/PhysicianSurgeon/Lookup.aspx?licenseType=C&licenseNumber=42731
(accessed November 8, 2011).
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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s July 11, 2011 motion (dkt. no. 102) is partially granted;2

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2. Deputy Attorney General William H. Downer shall take all steps necessary to

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assist the United States Marshal in locating an address for service of process on defendant

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Alfredo Q. Noriega, M.D., and shall report to the court within twenty-one days whether he has

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been able to provide a valid address to the U.S. Marshal and, if not, why no address can be

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found.

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3. The U.S. Marshal shall maintain the confidentiality of any service address

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information provided by Deputy Attorney General Downer. Should an address be provided, the

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U.S. Marshal shall, upon receipt of that address, take all steps necessary to request a waiver of

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service and/or to personally serve defendant Noriega in accordance with the provisions of this

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court’s April 5, 2011 order.

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4. The Clerk of the Court shall serve a copy of this order on the United States

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Marshal.

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DATED: November 8, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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john1609.svcN

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Plaintiff is advised that once the motions to dismiss filed by defendants Deur, Shockley
and Sisto are resolved, and defendant Noriega has appeared in the action, the court will revisit
the issue of scheduling, including discovery, without further motion by any party.
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