Navarro v. Herdon et al

Filing 59

ORDER signed by Magistrate Judge Kendall J. Newman on 04/14/11 ordering plaintiff's motion to compel discovery 57 is granted in part as follows: Within 14 days after the filing date of this order, counsel for defendants (who is an attorney wit h the California Attorney General's Office) shall obtain, to the best of his ability and including all reasonable inquiries, the current information necessary to effect service of process on defendants Frishman, Shelton and O'Brien, and sha ll provide such information to plaintiff. Defendants' counsel shall contemporaneously file with the court a notice of compliance, or explanation of noncompliance with thi directive. Plaintiff's motion for an extension of time 58 within w hich to effect service of process upon defendants Frishman, Shelton and O'Brien is granted in part as follows: Within 10 days after receipt of the information from defendants' counsel, plaintiff shall submit to the court the following docum ents necessary to effect service of process on defendants Frishman, Shelton and O'Brien: The attached Notice of Submission of Documents, 3 completed USM-285 forms, 4 copies of the endorsed complaint filed 08/10/10 24 and 1 completed summons. Within the same deadline, if any of the requested information remains unavailable, plaintiff shall submit an affidavit explaining the omission, and may request that 1 or more of these defendants be dismissed from this action. The clerk of cour is directed to send plaintiff 3 USM-285 forms, instruction sheet and a blank summons.. (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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MARIO NAVARRO,

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Plaintiff,

No. 2:09-cv-1878 KJM KJN P

vs.
DEBRA HERNDON, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in

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this civil rights action filed pursuant to 42 U.S.C. § 1983. The court ordered service of plaintiff’s

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amended complaint on September 13, 2010. (Dkt. No. 28.) Service of process has been

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successful for fourteen of the seventeen named defendants.1 However, three defendants remain

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unserved: Frishman,2 Shelton, and O’Brien.3 Plaintiff has filed a motion to compel discovery in

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The following defendants were served process and have subsequently appeared in this
action: Nicholas, Vasquez, Kernan, Morrow, Walker, Kelly, Johnson, Sclafani, Baker, Grannis,
Baxter, Costa, Soliman, and Griffin.
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The court recognizes that service of process is still pending with the U.S. Marshal for
defendant Frishman. (See Dkt. No. 46, ordering service on January 4, 2011.) However, the
passage of time indicates that more accurate information is required. (Cf. Dkt. No. 52, waiver of
service returned executed by defendant Griffin, for whom service of process was ordered the
same date as for Frishman.)
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The court recognizes that the correct spelling of these defendants’ names may currently
be unresolved; both plaintiff and defendants’ counsel must consider this variable in their efforts

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order to obtain from defendants’ counsel the requisite information to serve process on these

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defendants (Dkt. No. 57), and seeks an extension of time within which to effect such service

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(Dkt. No. 58). Meanwhile, on November 19, 2010, before all defendants were served,

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defendants filed a motion to dismiss plaintiff’s amended complaint. (Dkt. No. 38.) Plaintiff has

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filed an opposition to that motion. (Dkt. No. 48.)

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Good cause having been shown, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to compel discovery (Dkt. No. 57) is granted in part, as

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follows:

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a. Within fourteen (14) days after the filing date of this order, counsel for

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defendants (who is an attorney with the California Attorney General’s office) shall obtain, to the

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best of his ability and including all reasonable inquiries, the current information necessary to

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effect service of process on defendants Frishman, Shelton, and O’Brien, and shall provide such

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information to plaintiff.

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b. Defendants’ counsel shall contemporaneously file with the court a notice of
compliance, or explanation of noncompliance with this directive.

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2. Plaintiff’s motion for an extension of time (Dkt. No. 58) within which to effect

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service of process upon defendants Frishman, Shelton, and O’Brien is granted in part, as follows:

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a. Within ten (10) days after receipt of the information from defendants’ counsel,

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plaintiff shall submit to the court the following documents necessary to effect service of process

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on defendants Frishman, Shelton, and O’Brien:

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i. The attached Notice of Submission of Documents;

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ii. Three completed USM-285 forms (one for each defendant);

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iii. Four copies of the endorsed complaint filed August 10, 2010 (Dkt.
No. 24);4 and

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to comply with this order.
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The court previously provided plaintiff with a copy of his 488-page file-endorsed
complaint. (Dkt. No. 21, at 24.)

iv. One completed summons form.5

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b. Within the same deadline, if any of the requested information remains

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unavailable, plaintiff shall submit an affidavit explaining the omission, and may request that one

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or more of these defendants be dismissed from this action;

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3. The undersigned will address defendants’ motion to dismiss (Dkt. No. 38) in a
separate order; and

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4. The Clerk of Court is directed to send plaintiff three USM-285 forms, along

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with an instruction sheet, and a blank summons.

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DATED: April 14, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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nava1878.36.etc.

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It is preferable that plaintiff use a copy of the summons previously served on the other
defendants; alternatively, a new summons may be served.

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARIO NAVARRO,
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Plaintiff,

No. 2:09-cv-1878 KJM KJN P

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vs.
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DEBRA HERNDON, et al.,

NOTICE OF SUBMISSION

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Defendants.

OF DOCUMENTS

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Plaintiff hereby submits the following documents in compliance with the court’s
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order filed __________________:
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completed summons form

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completed USM-285 forms

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copies of the August 10, 2010 Amended Complaint

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Affidavit stating why this information is not available
and/or requesting dismissal of one or more defendants

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OR
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_________________________________
Date

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Plaintiff