Gilbert v. Herbert et al

Filing 30

ORDER signed by Magistrate Judge Craig M. Kellison on 07/20/09 granting 27 request for notification as outlined above. The clerk of the court is directed to update the docket to reflect that Susan Hubbard is a defendant to this action and to termi nate Susan Herbert as a party. The court's prior orders are amended to reflect that service is appropriate for defendant Hubbard, who was erroneously named as Herbert. The clerk of the court shall send plaintiff 1 USM-285 form, 1 summon, instruction sheet and a copy of the complaint to be completed and returned within 30 days. (Plummer, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. SUSAN HERBERT, et al., Defendants. / Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's filing (Doc. 27) entitled "Notice to the Courts of Plaintiff Not Receiving Notice that Summons was Unexecuted on Defendants." In his document, plaintiff states that he was notified by the United States Marshall that summons was returned unexecuted as to the California Department of Corrections and Rehabilitation. He asks the court to provide him with notice as to any defendants for whom service is returned unexecuted. This request is granted. The court hereby informs plaintiff that, to date, summons has not been returned unexecuted as to any defendant listed in the court's March 6, 2009, order directing service by the United States Marshall. Further, to date, defendants Fox and Simmons have waived service. 1 FRED WAYNE GILBERT, Plaintiff, ORDER No. CIV S-09-0209-CMK-P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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As to the California Department of Corrections and Rehabilitation, the court presumes that plaintiff is referring to docket entry 16 which indicates that summons was returned unexecuted as to this entity. The actual document, however, reflects that summons was returned unexecuted as to Susan Hubbard because such individual was "not named as defendant or named on court order to be served." This is correct. Plaintiff names Susan Herbert, not Susan Hubbard. It appears that plaintiff incorrectly named Herbert in the complaint, instead intending to name Susan Hubbard, who is the former director of the California Department of Corrections and Rehabilitation. The Clerk of the Court will be directed to update the docket to reflect this correction and the court hereby modifies its prior orders (i.e., Docs. 10 and 13) to reflect that service is appropriate for defendant Hubbard. Plaintiff will be required to submit new forms and other documents for re-service on Hubbard by the United States Marshall. As before, plaintiff is cautioned that failure to submit the required documents may result in the imposition of appropriate sanctions. See Local Rule 11-110. As to other defendants listed in the court's service orders who have not yet been served, plaintiff will be informed by court order if summons is returned unexecuted. Accordingly, IT IS HEREBY ORDERED that: 1. 2. Plaintiff's request for notification (Doc. 27) is granted, as outlined above; The Clerk of the Court is directed to update the docket to reflect that

Susan Hubbard is a defendant to this action and to terminate Susan Herbert as a party; 3. The court's prior orders are amended to reflect that service is appropriate

for defendant Hubbard, who was erroneously named as Herbert; 4. The Clerk of the Court shall send plaintiff one USM-285 form, one

summons, an instruction sheet, and a copy of the complaint; and /// /// /// 2

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5.

Within 30 days of the date of service of this order, plaintiff shall complete

the attached Notice of Submission of Documents and submit the following documents to the court: a. b. c. d. The completed Notice of Submission of Documents; One completed summons; Once completed USM-285 form for defendant Hubbard; and Two copies of the endorsed complaint.

DATED: July 20, 2009 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4 DATED: __________________ ____________________________________ Plaintiff order: 1 completed summons form; completed USM-285 form(s); and copies of the complaint. / NOTICE OF SUBMISSION OF DOCUMENTS Plaintiff hereby submits the following documents in compliance with the court's vs. SUSAN HERBERT, et al., Defendants. FRED WAYNE GILBERT, Plaintiff, No. CIV S-09-0209-CMK-P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA