Smith v. California State Prison - Sacramento et al

Filing 60

ORDER signed by Magistrate Judge Dale A. Drozd on 1/04/12 ordering defendants are relieved of having to pay the costs for service. The clerk of the court is directed to open a separate action, randomly assign a United States Magistrate Judge to the action, and file plaintiff's complaint 59 in the new action. (The new case number is 2:12-cv-0024 GGH P). (Plummer, M) Modified on 1/5/2012 (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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BERNARD L. SMITH,

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Plaintiff,

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No. CIV S-10-0766 KJM DAD P

vs.
CALIFORNIA STATE PRISON –
SACRAMENTO, et al.,

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Defendants.
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ORDER
/

Plaintiff is a state prisoner proceeding pro se with an action filed pursuant to 42

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U.S.C. § 1983. On November 10, 2011, the undersigned issued findings and recommendations,

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recommending that defendants’ motion to dismiss be granted based on plaintiff’s failure to

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exhaust his administrative remedies prior to filing this action. The court also ordered defendants

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Baker, Bal, Harvey, Hontz, Macomber, Maserut, Mini, Schroeder and Woods to each pay to the

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United States Marshal the sum of $55.00, unless the defendants filed a written statement showing

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good cause for their failure to waive service.

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On November 21, 2011, defense counsel filed a timely response to the court’s

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order requiring the defendants to pay the United States Marshal service costs. Therein, defense

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counsel explains that he received and signed the service waivers for each of the defendants and

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directed a legal analyst at the Office of the Attorney General to mail the signed waivers. The
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legal analyst then placed the signed waivers in outgoing mail to the United States Marshal.

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Defense counsel has attached copies of each defendant’s waiver of service of summons. In

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addition, both defense counsel Gomez and Legal Analyst Jumper have submitted declarations

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signed under penalty of perjury describing the actions they took to return the signed waivers of

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service of summons. (Gomez Decl. & Jumper Decl. & Ex. 1) Under these circumstances, and

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good cause appearing therefor, the court will relieve the defendants of having to pay the costs

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associated with service.

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Also pending before the court is a new complaint filed by plaintiff on December
1, 2011. Therein, plaintiff repeats many of the same factual allegations he has included in his

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amended complaint in this case. The Clerk of the Court docketed plaintiff’s complaint as a

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second amended complaint in this action. Upon further review of the complaint, however, it

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appears that, having now exhausted his administrative remedies, plaintiff was attempting to

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initiate a new action in response to the undersigned’s recommendation that this action be

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dismissed without prejudice due to his failure to exhaust administrative remedies prior to filing

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suit. (Compl. at 19.) Accordingly, the court will direct the Clerk of the Court to open a separate

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action, randomly assign a United States Magistrate Judge to the action, and file plaintiff’s

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December 1, 2011 complaint in the new action.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants are relieved of having to pay the costs for service; and

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2. The Clerk of the Court is directed to open a separate action, randomly assign a

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United States Magistrate Judge to the action, and file plaintiff’s complaint (Doc. No. 59) in the

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new action.

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DATED: January 4, 2012.

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DAD:9
smit0766.taxcost(2)

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