Xavier v. Roche et al

Filing 34

ORDER signed by Magistrate Judge Carolyn K. Delaney on 06/21/12 vacating 32 FINDINGS AND RECOMMENDATIONS. The clerk of the court shall send plaintiff 2 USM-285 forms, 1 summons and instruction sheet. Within 30 days from the date of this order, pl aintiff shall complete the attached Notice of Submission and submit it to the court along with a completed summons, 2 completed USM-285 forms and 3 copies of the endorsed complaint filed 09/01/11. (Plummer, M)(Copy of this order, blank summons, instruction sheet and 2 USM-285 forms sent to attorney for plaintiff at address of record) Modified on 6/22/2012 (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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GARY R. XAVIER,

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Plaintiff,

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No. 2:09-cv-0783 LKK CKD P

vs.

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M. FRENCH, et al.,
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Defendants.

ORDER

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Plaintiff, a state prisoner represented by counsel, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. On April 12, 2012, the court ordered plaintiff to complete

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and submit USM-285 forms and a summons, as required to effect service on defendants French

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and Holland. (Dkt. No. 29.) One day later, plaintiff submitted copies of the complaint but failed

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to supply defendants’ addresses on either the USM-285 forms or summons. Thus, on April 25,

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2012, the Clerk of Court was directed to return the forms to plaintiff so that plaintiff could

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properly fill them out and re-submit them within 30 days. Plaintiff was advised that failure to do

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so would result in a recommendation that this action be dismissed. (Dkt. No. 31; see Dkt. No.

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30.)
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On June 11, 2012, having heard nothing more from plaintiff, the court issued

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findings and a recommendation of dismissal of this action without prejudice. (Dkt. No. 32.) On

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June 20, 2012, plaintiff through counsel filed objections to the findings and recommendations,

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stating that the forms he submitted were “rejected due to some technical deficiency.” He states

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that he has corrected this deficiency and submitted the forms. (Dkt. No. 33.)1

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Plaintiff through counsel also expresses some confusion as to the “foreign and

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byzantine” process by which service is to be effected on defendants. As the court explained in its

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order of April 12, 2012:

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Plaintiff need not attempt service on defendants and need not
request waiver of service. Upon receipt of the above-described
documents, the court will direct the United States Marshal to serve
the above-named defendants pursuant to Federal Rule of Civil
Procedure 4 without payment of costs.

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(Dkt. No. 29 at 2.)

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In light of plaintiff’s objections, the court will vacate its June 11, 2012 findings

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and recommendations and grant plaintiff an additional 30 days to submit the completed service

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documents.

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At this time, the docket does not reflect plaintiff’s re-submission of the forms. At any
rate, plaintiff will be granted additional time to complete and submit them.
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Accordingly, IT IS HEREBY ORDERED that:

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1. The court’s June 11, 2012 recommendation that this action be dismissed (Dkt.

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No. 32) is VACATED;

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2. The Clerk of Court shall send plaintiff two USM-285 forms, one summons,
and an instruction sheet.

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3. Within thirty days from the date of this order, plaintiff shall complete the
attached Notice of Submission of Documents and submit the following documents to the court:

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a. The completed Notice of Submission of Documents;

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b. One completed summons;

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c. Two USM-285 forms; and

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d. Three copies of the endorsed complaint filed September 1, 2011.

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Dated: June 21, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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xavi0783.vac

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY R. XAVIER,

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Plaintiff,
vs.
M. FRENCH et al. ,

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NOTICE OF SUBMISSION

Defendants.

OF DOCUMENTS

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No. 2:09-cv-0783 LKK CKD P

Plaintiff hereby submits the following documents in compliance with the court's
order filed

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completed summons form

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completed USM-285 forms

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copies of the
Complaint/Amended Complaint

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DATED:

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Plaintiff
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