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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ANTHONY R. TURNER, 11 Plaintiff, 12 13 No. 2: 10-cv-1848 MCE KJN P vs. WARDEN SALINAS, et al., 14 ORDER AND Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding without counsel with a civil rights action 17 pursuant to 42 U.S.C. § 1983. For the following reasons, the undersigned recommends that 18 defendant Vertinelli be dismissed from this action. 19 On September 22, 2010, the court ordered the United States Marshal to serve the 20 complaint on defendants. On February 16, 2011, process directed to defendant Vertinelli was 21 returned unserved because he was not employed at the prison listed on the USM 285 form. 22 Service was also ineffective because defendant Vertinelli’s name was not contained on the 23 California Department of Corrections and Rehabilitation Locator (“CDCRL”) list. Accordingly, 24 on February 23, 2011, the court granted plaintiff sixty days to provide additional information to 25 serve this defendant. 26 //// 1 1 On April 27, 2011, plaintiff submitted the forms necessary to serve defendant 2 Vertinelli. On May 12, 2011, the court ordered the United States Marshal to serve this 3 defendant. On May 25, 2011, process directed to defendant Vertinelli was again returned 4 unserved. Service was again ineffective because defendant Vertinelli was not employed at the 5 prison listed on the USM 285 form and his name was not contained on the CDCRL list. 6 The address provided by plaintiff for defendant Vertinelli on April 27, 2011 is the 7 same address that plaintiff originally provided. Under these circumstances, it appeared that 8 service of defendant Vertinelli could not be effected. Accordingly, on June 9, 2011, plaintiff was 9 ordered to show cause within twenty-one days why defendant Vertinelli should not be dismissed. 10 Plaintiff did not respond to the show cause order. For the reasons discussed above, the 11 undersigned recommends that defendant Vertinelli be dismissed. 12 On June 3, 2011, the court received from plaintiff a motion to compel defendants 13 to produce the “true” identity of defendant Vertinelli. In the motion to compel, plaintiff also 14 seeks a subpoena directing the warden and director of the California Department of Corrections 15 and Rehabilitation (“CDCR”) to produce records concerning the sergeants who worked at DVI 16 on May 5, 2010. It is not entirely clear when, pursuant to the mailbox rule, plaintiff filed this 17 motion. However, plaintiff signed his motion on May 27, 2011. 18 On June 8, 2011, defendants filed an opposition to plaintiff’s motion to compel. 19 Defendants argue that the motion to compel is untimely because, pursuant to the January 21, 20 2011 scheduling order, discovery closed on May 13, 2011. 21 Plaintiff’s motion to compel is denied because it is untimely. In making this 22 finding, the undersigned observes that process directed to defendant Vertinelli was returned 23 unserved in February 2011. As discussed above, the USM-285 form returned by the United 24 States Marshal stated that defendant Vertinelli was not employed at the prison listed by plaintiff 25 on the form and that “per CDCRL, not listed.” Rather than engaging in timely discovery to 26 locate defendant Vertinelli or identify the “true” identify of this defendant, on April 27, 2011, 2 1 plaintiff instead provided the same ineffective address for service of defendant Vertinelli as he 2 originally provided. Because plaintiff had adequate opportunity to conduct timely discovery 3 regarding the location and/or “true” identify of defendant Vertinelli, the motion to compel is 4 denied as untimely. 5 6 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to compel (Dkt. No. 63) is denied; and 7 IT IS HEREBY RECOMMENDED that defendant Vertinelli be dismissed. 8 These findings and recommendations are submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 10 one days after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 13 objections shall be filed and served within fourteen days after service of the objections. The 14 parties are advised that failure to file objections within the specified time may waive the right to 15 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 DATED: July 7, 2011 17 18 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 19 20 tur1848.57 21 22 23 24 25 26 3

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