Birdwell et al v Cates et al

Filing 92

ORDER signed by Magistrate Judge Gregory G. Hollows on 07/02/12 ordering the undersigned will take no action on serving Petersen until the pending findings and recommendations are adopted or declined. (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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BILLY PAUL BIRDWELL, II,

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Plaintiff,

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vs.

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No. 2:10-cv-0719 KJM GGH P

M. CATES, et al.,

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ORDER

Defendants.
/
Plaintiff is state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. Service was effectuated on approximately 17 defendants in April and May of

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2011. One defendant remains unserved, Petersen, and on August 23, 2011, the undersigned

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recommended that Petersen be dismissed as plaintiff did not return the service forms. Discovery

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commenced and finished and the remaining defendants filed a motion for summary judgment.

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On May 9, 2012, the undersigned recommended that the motion for summary judgment be

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granted and this case closed. The undersigned also looked to the merits of the claims against

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Petersen and recommended that Petersen be dismissed, despite being unserved. On June 1, 2012,

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the district judge assigned to this case declined to adopt the August 23, 2011, findings and

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recommendations that Petersen be dismissed for failure to return the service forms and provided

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plaintiff another opportunity to return the service forms. Plaintiff has returned the completed
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service forms for defendant Petersen.

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At this time, it would be inefficient to require the United States Marshal to serve

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defendant and counsel be obtained to answer the complaint to litigate this case while findings

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and recommendations are pending that Petersen be dismissed from this action on the merits and

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the case closed. If Peterson is dismissed on the merits, the need to serve becomes moot.

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Therefore, the undersigned will take no action on serving Petersen until the
pending findings and recommendation are adopted or declined.

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IT IS SO ORDERED.
DATED: July 2, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH: AB
bird0719.ord

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