Ramey v. Reyersbach et al

Filing 45

ORDER signed by Magistrate Judge Craig M. Kellison on 02/03/16 ordering defendants' motion to strike 38 is granted. Plaintiff's surreply 37 is stricken. Plaintiff's motions 30 , 40 , 41 , 42 and 44 are denied as premature. Plaintiff shall promptly seek additional information sufficient to effect service on defendant Granillo and notify the court once such information is ascertained. (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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JOHNNEY RAMEY,

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Plaintiff,

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No. 2:11-CV-3083-KJM-CMK-P

vs.

ORDER

REYERSBACH, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is defendants’ motion to strike (Doc. 38). Also

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before the court are the following motions filed by plaintiff: (1) “Notice of Motion for Opening

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Discovery in the Said Case” (Doc. 30); (2) “Notice of Motion Demanding Trial” (Doc. 40);

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(3) “Motion Demanding Trial by Jury for Eighth Amendment Right Violation by Destruction of

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Property in Retaliation for Protective First Amendment Right Exercise in Filing Redress

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Grievance, Exercising Right Under CDCR Title 15, Section 3163" (Doc. 41); (4) “Demand for

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Jury Trial” (Doc. 42); and (5) “Motion to the Chief Justice and Requesting the Court to Establish

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a Trial Date” (Doc. 44).

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In their motion to strike, defendants note that the rules do not contemplate the

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filing of a surreply brief and seek an order striking plaintiff’s “Opposition to Reply Brief.”

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Defendants are correct. Plaintiff’s surreply (Doc. 37) will be stricken and not considered.

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In his “Notice of Motion for Opening Discovery in the Said Case,” plaintiff seeks

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an order opening discovery. Plaintiff’s motion will be denied without prejudice as premature

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because no answer to the complaint has been filed and, therefore, the matter is not at issue. In his

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remaining motions, plaintiff seeks an order setting a date for a jury trial. Again, because the

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matter is not at issue, plaintiff’s requests will be denied without prejudice as premature.

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Finally, a review of the docket reflects that process directed to defendant Granillo

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was returned unexecuted by the United States Marshal with the following notation: “4/21/15 per

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CDCR special investigator unable to locate/identify.” Plaintiff must provide additional

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information to serve this defendant. Plaintiff shall promptly seek such information through the

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California Public Records Act, Cal. Gov't. Code § 6250, et seq., or other means available to

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plaintiff. If access to the required information is denied or unreasonably delayed, plaintiff may

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seek judicial intervention. Once additional information sufficient to effect service is obtained,

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plaintiff shall notify the court whereupon plaintiff will be forwarded the forms necessary for

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service by the U.S. Marshal. Plaintiff is cautioned that failure to effect service may result in the

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dismissal of unserved defendants. See Fed. R. Civ. P. 4(m).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Defendants’ motion to strike (Doc. 38) is granted;

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2.

Plaintiff’s surreply (Doc. 37) is stricken;

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3.

Plaintiff’s motions (Docs. 30, 40, 41, 42, and 44) are denied as premature;

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Plaintiff shall promptly seek additional information sufficient to effect

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and

service on defendant Granillo and notify the court once such information is ascertained.

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DATED: February 3, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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