Woodson v. Weisman et al

Filing 41

ORDER signed by Circuit Judge Richard R. Clifton on 5/23/2011 ORDERING that Plaintiff's 40 Motion for Reconsideration is DENIED.(Duong, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MAURICE WOODSON,

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No. 2:08-CV-01965-RRC

Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

vs.
M. WEISMAN, et al.,

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Defendants.

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/

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Pursuant to Local Rule 230, the court finds these matters suitable for disposition without a

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hearing. On February 22, 2011, Plaintiff filed a motion for reconsideration of this court’s February

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10, 2011 order. (Doc. # 40.) For the reasons set forth below, Plaintiff’s motion is DENIED.

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BACKGROUND
On August 21, 2008, pro se prisoner Plaintiff Maurice Woodson (“Plaintiff”) commenced

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this action, and on September 18, 2009, the court directed service of Plaintiff’s Complaint as to

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Defendant H. Dhesi and several other defendants. The court subsequently sent Plaintiff the

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necessary documents to complete and return to the U.S. Marshal’s Service, so that the Marshal could

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serve the Complaint on Plaintiff’s behalf. On March 25, 2010, the court ordered service by the U.S.

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Marshal.

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On August 18, 2010, the summons was returned unexecuted as to Dhesi. (Doc. # 30.) The

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summons indicated that Dhesi could not be located at the address provided by Plaintiff, and that the

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forwarding address obtained by the Marshal was returned by the post office marked “attempted-not

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known.” Further, the summons indicated that the CDC locator provided no further information on

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Dhesi.

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On November 1, 2010, after it became clear that Plaintiff had not caused the Complaint to be

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served on Dhesi within 120 days of the date that service was directed as required under Federal Rule

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of Civil Procedure 4(m), the court ordered Plaintiff to show cause why this action should not be

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dismissed (the “OSC”). (Doc. # 33.)

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Plaintiff provided little by way of explanation in his November 16, 2010 response to the

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OSC. Plaintiff stated only that: (1) he had requested a status report; (2) on August 19, 2010 he had

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“submitted” a subpoena duces tecum to the court for Dhesi’s address; (3) that Plaintiff had not

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received permission for “discovery”; (4) that Plaintiff is not allowed to receive staff contact

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information from the CDCR; and (5) he is a pro-se litigant. (Doc. # 35.) On February 10, 2011, the

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court dismissed the action against Dhesi for lack of personal jurisdiction due to Plaintiff’s failure to

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timely serve the Complaint on Dhesi without good cause. (Doc. # 39.)

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Several days prior to Plaintiff’s response to the OSC, Plaintiff filed a motion for subpoena

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duces tecum on November 9, 2010. (Doc. # 34.) In the same February 10, 2011 order, the court

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denied the motion as untimely and moot because the action against Dhesi was dismissed. The court

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noted that Plaintiff had failed to offer any explanation why he did not attempt to ascertain Dhesi’s

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address prior to the Court’s OSC and within the 120-day period.

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On February 22, 2011, Plaintiff filed the instant motion for reconsideration of this court’s
February 10, 2011 order. (Doc. # 40.)
DISCUSSION
Plaintiff does not specify the particular Federal Rule of Civil Procedure under which he files

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the motion for reconsideration. Motions for reconsideration may be brought pursuant to Federal

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Rules of Civil Procedure 59(e) or 60(b). A motion for reconsideration under Rule 59(e) should not

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be granted, absent highly unusual circumstances, unless the district court: (1) is presented with

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newly discovered evidence; (2) has committed clear error; or (3) if there is an intervening change in

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the controlling law. 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)

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(citation omitted). Fed. R. Civ. P. 60(b) provides that the court may grant relief from judgment in

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several instances, including mistake or neglect, newly discovered evidence, fraud, or any other

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reasons justifying relief. See Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1260 (9th Cir.

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2010). Local Rule 230(j) provides that a party shall present a brief or affidavit “setting forth the

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material facts and circumstances surrounding each motion” and what grounds exist for the motion

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and “why the facts or circumstances were not shown at the time of the prior motion.”

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In this motion, Plaintiff largely reiterates the explanations offered in his response to the OSC.

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Plaintiff argues that: (1) he has in forma pauperis status and is a pro se litigant; (2) he requested a

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status report; (3) he filed a “Request to Inspect Public Records” on November 8, 2010 and plans to

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resubmit such request; (4) he filed a subpoena duces tecum on August 19, 2010; and (5) the U.S.

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Marshals failed to properly effectuate service.

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At the outset, the court notes that Plaintiff raises no arguments that were not, or could not

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have been, raised in Plaintiff’s original response to the OSC. Nor does Plaintiff identify any clear

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error in the court’s prior order, fraud, mistake, or an intervening change in the law. The court may

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deny the motion for reconsideration on this basis alone.

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As to the merits of the motion, reasons one, two and three do not constitute “good cause” for

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not effecting service. One, as already noted in this court’s prior orders, a pro se plaintiff proceeding

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in forma pauperis is not exempt from service requirements. Two, a general status inquiry 119 days

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after the Marshal was directed to serve the defendants, (Doc. # 24), does not demonstrate diligence

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in obtaining Dhesi’s address. Three, a request for records purportedly made on November 8, 2010 is

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irrelevant to the question before the court, namely, whether Plaintiff can demonstrate good cause for

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failing to provide Dhesi’s address during the time period before the court’s OSC on November 1,

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2010. Moreover, this request, which is attached as Exhibit B to Plaintiff’s motion for

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reconsideration, bears no date stamp or other indicator that the request was actually filed anywhere.

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With respect to Plaintiff’s assertion that he submitted a subpoena duces tecum on August 19,
2010, that claim is not supported by the record. There is no subpoena on file for August 2010.

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Exhibit A attached to Plaintiff’s motion for reconsideration appears to be a request for a subpoena,

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but that document is dated September 19, 2010. Moreover, there is no stamp date or any indication

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the document was filed anywhere. Instead, the record shows that Plaintiff filed a motion for

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subpoena duces tecum on November 9, 2010, after this court’s November 1 OSC. (Doc. # 34.)

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Again, steps taken by Plaintiff after the OSC are not pertinent to the court’s inquiry into the time

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period prior to the OSC and during the 120 days after service was directed on the defendants.

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Finally, the U.S. Marshal has not failed in the performance of its duty. Plaintiff is correct

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insofar as a pro se plaintiff is “entitled to rely on the U.S. Marshal for service of the summons and

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complaint,” but the plaintiff is also required to “provide[] the necessary information to help

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effectuate service.” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). Here, upon determining

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that Plaintiff had provided an incorrect address, the Marshal attempted to serve the Complaint at the

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forwarding address and then attempted to obtain the correct address from the CDC, to no avail.

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Plaintiff failed to provide the Marshal will sufficient information, and the case may be dismissed.

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See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), overruled on other grounds by Sandin v.

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Connor, 505 U.S. 472 (1995); see Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991).

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CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration is DENIED.

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DATED: May 23, 2011
/s/ Richard R. Clifton
RICHARD R. CLIFTON
UNITED STATES CIRCUIT JUDGE

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