O'Keefe v. Cate

Filing 49

ORDER signed by Magistrate Judge Kendall J. Newman on 7/17/12 ORDERING that the portion of the 41 order directing the United States Marshal to serve Chief Psychologist Belavich is VACATED; the United States Marshal shall proceed to serve Chief Psyc hiatrist Karen Higgins; Defendant Chief Psychologist is DISMISSED; If plaintiff intends to name Director of Mental Health Timothy Belavich as a defendant, he must file a motion to amend and proposed amended complaint naming Director of Mental Health Timothy Belavich as a defendant; and the Clerk of the Court is directed to serve a copy of this order on the United States Marshal. (cc USM)(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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TIMOTHY O’KEEFE,

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Plaintiff,

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No. 2: 11-cv-2659 KJM KJN P

vs.

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MATTHEW CATE, et al.,

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Defendants.

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ORDER
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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. On April 9, 2012, the court ordered the United States Marshal to

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serve the complaint on defendants. Process directed to defendants Chief Psychologist and Chief

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Psychiatrist was returned unserved because “there is not enough information” to process the

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requests.

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On May 11, 2012, the court granted plaintiff sixty days to provide additional

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information to serve defendants Chief Psychologist and Chief Psychiatrist. On June 18, 2012,

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plaintiff submitted USM-285 forms containing additional information for service of these

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defendants. Plaintiff identified the Chief Psychiatrist as Karen Higgins. Plaintiff identified the

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Chief Psychologist as Timothy Belavich. On June 26, 2012, the court ordered the United States

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Marshal to again attempt service of these defendants.
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The United States Marshal has since informed the court that plaintiff’s USM-285

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form identifies the Chief Psychologist as “Director of Mental Health Timothy Belavich.” Based

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on the information provided by plaintiff, it appears that there is no person with the title of Chief

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Psychologist. In other words, Director of Mental Health Timothy Belavich is a new defendant.

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If plaintiff intends to name Director of Mental Health Timothy Belavich as a defendant, he must

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file a motion to amend and proposed amended complaint naming Director of Mental Health

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Timothy Belavich as a defendant.

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Because plaintiff has abandoned his claim against defendant Chief Psychologist,
as no such person apparently exists, the undersigned orders this defendant dismissed. Fed. R.
Civ. P. 41(a).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The portion of the June 26, 2012 order directing the United States Marshal to

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serve Chief Psychologist Belavich is vacated; the United States Marshal shall proceed to serve

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Chief Psychiatrist Karen Higgins;

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2. Defendant Chief Psychologist is dismissed;

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3. If plaintiff intends to name Director of Mental Health Timothy Belavich as a

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defendant, he must file a motion to amend and proposed amended complaint naming Director of

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Mental Health Timothy Belavich as a defendant; and

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4. The Clerk of the Court is directed to serve a copy of this order on the United

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States Marshal.

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DATED: July 17, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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ok2659.cla

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