Gipbsin v. Kernan, et al

Filing 76

ORDER signed by Magistrate Judge Dale A. Drozd on 7/29/14 ORDERING that Plaintiff's two additional USM-285 forms for non-defendants in this action, which he submitted with his documents for service of process are DISREGARDED; Plaintiff's various documents from his prior state court proceedings, which he submitted with his documents for service of process are DISREGARDED; Plaintiff'S subpoenas, which he submitted with his documents for service of process are DISREGARDED; Plaintiff's MOTION for a summons and Complaint 67 is DENIED as moot; Plaintiff's MOTION for a Court Order 70 is DENIED as moot; and Plaintiff's MOTIONS for Appointment of Counsel 67 & 72 are DENIED as moot. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLARENCE A. GIPBSIN,

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Plaintiff,

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v.

No. 2:12-cv-0556 GEB DAD P

ORDER

SCOTT KERNAN et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis. Plaintiff seeks relief
pursuant to 42 U.S.C. § 1983.
On July 11, 2014, the court found that plaintiff’s second amended complaint appeared to

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state a cognizable claim for relief and ordered plaintiff to complete and return the documents

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necessary to effect service of his complaint on the named defendants. In addition to submitting

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the required service documents, plaintiff has submitted additional documents that the court will

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disregard. For example, plaintiff has submitted two additional USM-285 forms for individuals

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who are not defendants in this action. The court will not serve plaintiff’s complaint on

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individuals who have not been recognized as defendants in this case. In addition, plaintiff has

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submitted various documents from his prior state court proceedings. It is not clear why plaintiff

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has filed these documents in this court with his service documents, but they are not necessary or

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appropriate for service of process. Finally, plaintiff has filed several more subpoenas. As the
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court previously advised plaintiff, after the defendants appear in this action and file an answer the

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court will issue a discovery and scheduling order. At that time, plaintiff will have an opportunity

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to conduct discovery. However, neither discovery requests served on an opposing party nor that

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party’s responses should be filed with the court until such time as a party becomes dissatisfied

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with a response and seeks relief from the court pursuant to the Federal Rules of Civil Procedure.

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Plaintiff has also filed several motions and letters with the court. First, plaintiff has filed a

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“motion for summons and complaint” or what appears to be a request for service of his complaint.

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When plaintiff filed this request it appears that he did not have the benefit of the court’s July 11,

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2014 screening order, which ordered service of plaintiff’s complaint on defendants. In any event,

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plaintiff’s “motion for a summons and complaint” is now moot. Accordingly, the court will deny

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plaintiff’s motion.

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In addition, plaintiff has filed a motion for a court order allowing him to make copies of

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his complaint for service of process. Plaintiff has since submitted the requisite copies for the

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court to order service of his complaint on defendants. Accordingly, the court will deny this

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motion as moot as well, and by a separate order the court will direct the United States Marshal to

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serve plaintiff’s second amended complaint on the named defendants.

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Finally, plaintiff has requested appointment of counsel. For the same reasons discussed in

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the court’s July 11, 2014, screening order, which also denied plaintiff’s prior request for

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appointment of counsel, the court finds that this case does not meet the exceptional circumstances

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test. Accordingly, the court will deny plaintiff’s motions for appointment of counsel.

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In closing, the court observes that plaintiff has now filed an inordinate number of

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repetitive and unnecessary motions as well as various letters and documents in this case. Plaintiff

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is strongly cautioned that improper and superfluous filings impede the progress of a case, and the

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court may impose restrictions on plaintiff’s filings if he does not exercise appropriate restraint in

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the future. See De Long v. Jennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) (“There is strong

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precedent establishing the inherent power of federal courts to regulate the activities of abusive

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litigants by imposing carefully tailored restrictions under the appropriate circumstances.”)

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(quoting Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989)). Although plaintiff is
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proceeding pro se, he is required to comply with the Federal Rules of Civil Procedure and the

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Local Rules of Court. Plaintiff’s failure to obey court orders and the local and federal rules and

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meet his responsibilities in prosecuting this action may justify dismissal, including dismissal with

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prejudice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262-63 (9th Cir. 1992).

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s two additional USM-285 forms for non-defendants in this action, which he

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submitted with his documents for service of process are disregarded;
2. Plaintiff’s various documents from his prior state court proceedings, which he
submitted with his documents for service of process are disregarded;
3. Plaintiff’s subpoenas, which he submitted with his documents for service of process
are disregarded;

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4. Plaintiff’s motion for a summons and complaint (Doc. No. 67) is denied as moot;

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5. Plaintiff’s motion for a court order (Doc. No. 70) is denied as moot; and

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6. Plaintiff’s motions for appointment of counsel (Doc. Nos. 67 & 72) are denied.

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Dated: July 29, 2014

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DAD:9
gipb0556usm

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