Birdwell et al v Cates et al

Filing 90

ORDER DECLINING TO ADOPT 69 FINDINGS AND RECOMMENDATIONS signed by Judge Kimberly J. Mueller on 5/31/12. The Clerk is directed to send pltf 1 USM form and a copy of the 5/11/10 amended complaint. Submission of documents due within 60 days. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BILLY PAUL BIRDWELL, II,
Plaintiff,

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vs.

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No. CIV S-10-0719 KJM GGH P

M. CATE, et al.,

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Defendants.
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ORDER

Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On August 23, 2011, the magistrate judge filed findings and recommendations,

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Plaintiff has filed

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objections to the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304, this court has conducted a de novo review of this case. Having carefully reviewed the file,

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the court finds the findings and recommendations to be supported by the record and by the

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proper analysis.
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However, plaintiff’s objections attach his letters sent to the California Department

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of Justice as well as the California Department of Corrections and Rehabilitation (CDCR)

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revealing his diligent attempt to locate information on defendant Petersen in order to effect

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service. (See ECF 71 at 3-5.) The court exercises its discretion to consider these letters, and in so

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doing finds plaintiff has shown good cause why he has not yet served Petersen. Plaintiff’s

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objections suggest he has not received any response to his request for information sent to CDCR.

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Accordingly, the court will extend the time by which plaintiff may serve Peterson. If plaintiff has

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been unable to locate Peterson’s information through his requests, he may petition the court for

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assistance within the time set for him to effect service.

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1. The court declines to adopt the findings and recommendations filed August
23, 2011;

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2. The Clerk of the Court is directed to send to plaintiff one USM-285 form,
along with an instruction sheet and a copy of the amended complaint filed May 11, 2010;

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3. Within sixty days from the date of this order, plaintiff shall complete and

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submit the attached Notice of Submission of Documents to the court, with the following

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documents:

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a. One completed USM-285 form for each defendant;

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b. Two copies of the endorsed amended complaint filed May 11, 2010;

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and
c. One completed summons form (if not previously provided)

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or show good cause why he cannot provide such information.

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DATED: May 31, 2012.

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UNITED STATES DISTRICT JUDGE
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BILLY PAUL BIRDWELL, II,
Plaintiff,

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vs.

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No. CIV S-10-0719 KJM GGH P

M. CATES, et al.,
Defendants.

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/

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

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NOTICE OF SUBMISSION OF DOCUMENTS

order filed March 30, 2012:

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______ completed summons form

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______ completed USM-285 forms

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______ copies of the May 11, 2010 Amended Complaint

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DATED:

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______________________

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Plaintiff

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