Morris v. Nangalama et al

Filing 58

ORDER signed by Magistrate Judge Kendall J. Newman on 12/30/14 ORDERING that the December 3, 2014 findings and recommendations 55 are vacated; Plaintiffs request for judicial intervention 56 is granted; and within fourteen days from the date of this order, counsel for defendants shall file, under seal, the information obtained from the CDCR in connection with defendant Dr. Vu.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEON E. MORRIS,

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Plaintiff,

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No. 2:12-cv-1202 MCE KJN P

v.

ORDER

DR. NANGALAMA, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding pro se, with a civil rights action pursuant to 42

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U.S.C. § 1983. On December 3, 2014, the undersigned recommended that defendant Dr. Vu be

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dismissed based on plaintiff’s failure to provide information for service of process on Dr. Vu. On

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December 15, 2014, plaintiff filed a request for judicial intervention to assist him in locating

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defendant Dr. Vu.
In his second amended complaint plaintiff alleges that, inter alia, in December 2009,

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while he was incarcerated at California State Prison, Sacramento (“CSP-SAC”), Dr. Vu violated

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plaintiff’s Eighth Amendment rights by cutting plaintiff’s pain medication despite medical

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evidence that plaintiff’s cervical spondylosis had worsened. (ECF No. 39 at 7.)
Service on Dr. Vu was returned unexecuted noting that Dr. Vu was no longer working at

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CSP-SAC. The remaining defendants filed an answer on September 4, 2014.

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Court records indicate that there is a Dr. M. Vu working at the California Correctional

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Institution, and who has appeared in federal court actions through counsel. Payan v. Tate, Case

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No. 1:13-cv-0807 LJO DLB (E.D. Cal., Fresno Div.), and Villa v. Gonzalez, Case No. 1:11-cv-

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1080 LJO DLB (E.D. Cal., Fresno Div.). It is unclear whether Dr. M. Vu is the same Dr. Vu who

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was working at CSP-SAC in 2009. However, it is likely that the California Department of

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Corrections and Rehabilitation (“CDCR”) has information that would assist the court in locating

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defendant Dr. Vu to accomplish service of process.1 For example, it is likely that the CDCR or its

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human resources department has a record of Dr. Vu’s California state license number as well as a

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forwarding address for Dr. Vu for personnel and tax purposes.

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Good cause appearing, the findings and recommendations are vacated, and counsel for

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defendants are directed to contact the CDCR and obtain Dr. Vu’s complete name and California

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state medical license number and, if available, Dr. Vu’s forwarding address. Such information

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shall be filed under seal for purposes of instructing the U.S. Marshal to execute service of process

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on defendant Dr. Vu (unless defense counsel agrees to sign a waiver of service of process on

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behalf of Dr. Vu).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The December 3, 2014 findings and recommendations (ECF No. 55) are vacated;

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2. Plaintiff’s request for judicial intervention (ECF No. 56) is granted; and

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3. Within fourteen days from the date of this order, counsel for defendants shall file,

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under seal, the information obtained from the CDCR in connection with defendant Dr. Vu.

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Dated: December 30, 2014

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Moreover, in the May 20, 2014 service order, the U.S. Marshal was directed to “command all
necessary assistance from the California Department of Corrections and Rehabilitation (CDCR)
or any last known employer of a defendant to execute this order.” (ECF No. 43 at 2.)
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