Turner v. Salinas

Filing 66

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/7/11 ORDERING that 63 Motion to Compel is DENIED; RECOMMENDING that defendant Vertinelli be dismissed. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 21 days.(Dillon, 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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ANTHONY R. TURNER,

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Plaintiff,

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No. 2: 10-cv-1848 MCE KJN P

vs.
WARDEN SALINAS, et al.,

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ORDER AND

Defendants.

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FINDINGS & RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding without counsel with a civil rights action

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pursuant to 42 U.S.C. § 1983. For the following reasons, the undersigned recommends that

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defendant Vertinelli be dismissed from this action.

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On September 22, 2010, the court ordered the United States Marshal to serve the

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complaint on defendants. On February 16, 2011, process directed to defendant Vertinelli was

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returned unserved because he was not employed at the prison listed on the USM 285 form.

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Service was also ineffective because defendant Vertinelli’s name was not contained on the

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California Department of Corrections and Rehabilitation Locator (“CDCRL”) list. Accordingly,

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on February 23, 2011, the court granted plaintiff sixty days to provide additional information to

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serve this defendant.

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On April 27, 2011, plaintiff submitted the forms necessary to serve defendant

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Vertinelli. On May 12, 2011, the court ordered the United States Marshal to serve this

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defendant. On May 25, 2011, process directed to defendant Vertinelli was again returned

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unserved. Service was again ineffective because defendant Vertinelli was not employed at the

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prison listed on the USM 285 form and his name was not contained on the CDCRL list.

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The address provided by plaintiff for defendant Vertinelli on April 27, 2011 is the

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same address that plaintiff originally provided. Under these circumstances, it appeared that

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service of defendant Vertinelli could not be effected. Accordingly, on June 9, 2011, plaintiff was

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ordered to show cause within twenty-one days why defendant Vertinelli should not be dismissed.

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Plaintiff did not respond to the show cause order. For the reasons discussed above, the

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undersigned recommends that defendant Vertinelli be dismissed.

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On June 3, 2011, the court received from plaintiff a motion to compel defendants

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to produce the “true” identity of defendant Vertinelli. In the motion to compel, plaintiff also

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seeks a subpoena directing the warden and director of the California Department of Corrections

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and Rehabilitation (“CDCR”) to produce records concerning the sergeants who worked at DVI

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on May 5, 2010. It is not entirely clear when, pursuant to the mailbox rule, plaintiff filed this

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motion. However, plaintiff signed his motion on May 27, 2011.

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On June 8, 2011, defendants filed an opposition to plaintiff’s motion to compel.

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Defendants argue that the motion to compel is untimely because, pursuant to the January 21,

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2011 scheduling order, discovery closed on May 13, 2011.

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Plaintiff’s motion to compel is denied because it is untimely. In making this

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finding, the undersigned observes that process directed to defendant Vertinelli was returned

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unserved in February 2011. As discussed above, the USM-285 form returned by the United

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States Marshal stated that defendant Vertinelli was not employed at the prison listed by plaintiff

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on the form and that “per CDCRL, not listed.” Rather than engaging in timely discovery to

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locate defendant Vertinelli or identify the “true” identify of this defendant, on April 27, 2011,
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plaintiff instead provided the same ineffective address for service of defendant Vertinelli as he

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originally provided. Because plaintiff had adequate opportunity to conduct timely discovery

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regarding the location and/or “true” identify of defendant Vertinelli, the motion to compel is

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denied as untimely.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to compel (Dkt.
No. 63) is denied; and

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IT IS HEREBY RECOMMENDED that defendant Vertinelli be dismissed.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-

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one days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: July 7, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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tur1848.57

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