Atcherley v. Hanna, et al

Filing 52

ORDER signed by Magistrate Judge Allison Claire on 12/30/14 ORDERING that Plaintiff's MOTION for an order of service of the Second Amended Complaint 50 is GRANTED. Service of the amended complaint is appropriate for the following defendants : D. Wilson, S. Garcia, A. Rivas and A. Payne. Plaintiff's earlier MOTION for an order of service of the Second Amended Complaint 40 is DENIED as moot. The Clerk shall send Plaintiff four (4) USM- 285 forms, one summons, an instruction shee t, and a copy of the Second Amended Complaint filed 9/30/14. Within thirty days from the date of this order, Plaintiff shall complete the attached Notice of Submission of Documents and submit all documents to the court at the same time: Plaintiff&# 039;s REQUEST for an extension of 60-days to conduct discovery 49 is GRANTED. The Scheduling and Discovery Order 46 at 5 6 & 7 is AMENDED to state that (1) the parties may conduct discovery until 4/13/2015, and (2) all Pretrial Motions, exce pt Discovery Motions to compel discovery, shall be filed on or before 7/8/2015, and the order is otherwise CONFIRMED. Defendants' Request for a twenty-one-day extension of time to respond to Plaintiff's Interrogatories, Set One, and Requests for Admissions, Set One 51 , is GRANTED. Defendants must serve responses by 1/19/2015. (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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WILBUR ATCHERLY,

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No. 2:13-cv-0576 KJM AC P

Plaintiff,

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v.

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J. HANNA, et al.,

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ORDER

Defendants.

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Pending before the court are (1) plaintiff’s requests for service of the Second Amended

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Complaint (ECF Nos. 40 & 50), on defendants Wilson, Rivas, Garcia and Payne, (2) plaintiff’s

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request for a 60-day extension of time for conducting discovery (ECF No. 49), and

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(3) defendants’ first request for an extension of time to respond to discovery (ECF No. 51).

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Plaintiff initiated this action by filing a complaint claiming violations of his rights under the First

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and Eighth Amendments, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b), as well as the

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Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101–12213 (which, broadly,

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prohibits discrimination against persons with disabilities by public entities), and the

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Rehabilitation Act of 1973, 29 U.S.C. §§ 701–796l (which, broadly, prohibits recipients of federal

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funds from discriminating against persons with disabilities). ECF No. 1. The complaint named

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several defendants, including Rivas, Garcia and Wilson. Id., at 2. The court screened the

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complaint pursuant to 28 U.S.C. § 1915A, and determined that service of the complaint was
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appropriate for several defendants, including Rivas, Garcia and Wilson.
Eventually, plaintiff filed the First Amended Complaint, which named, among others,

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Payne, Garcia, Rivas and Wilson. ECF No. 29. All defendants other than Payne, Garcia, Rivas

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and Wilson moved to dismiss. ECF No. 31. Defendant then moved for leave to file a Second

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Amended Complaint, and requested an order for service of that complaint on Payne, Garcia,

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Rivas and Wilson. ECF Nos. 39 & 40. The undersigned recommended that the district judge

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grant in part and deny in part defendants’ motion to dismiss the First Amended Complaint, and

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grant plaintiff’s motion to file a Second Amended Complaint. ECF No. 41.

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The undersigned deferred plaintiff’s request for service of the Second Amended Complaint

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on Payne, Garcia, Rivas and Wilson, until after the Findings and Recommendations were

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reviewed by the district judge. Id. The district judge adopted the Findings and

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Recommendations, and referred the motion for service back to the magistrate judge. ECF No. 42.

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All defendants other than Payne, Garcia, Rivas and Wilson (these four not having been served),

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have now answered the Second Amended Complaint. ECF No. 44.

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The court has previously screened the original complaint, and found that, for screening

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purposes, it stated claims against Garcia, Rivas and Wilson. The Second Amended Complaint

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similarly states claims against those three, and service upon them will be ordered. See ECF

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No. 45. As for defendant Payne, the Second Amended Complaint alleges that Payne

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affirmatively prevented plaintiff from using his authorized accommodations, which, as Payne

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knew, plaintiff needed to enter a bus without severe injury to himself. Payne also threatened

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plaintiff with violence for asserting his right to an accommodation. ECF No. 45 ¶¶ 74-76. As a

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direct result, plaintiff severely injured himself getting on the bus, and suffered severe pain. Id.,

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¶¶ 79-82. Plaintiff’s allegations are sufficient, for screening purposes, to state claims against

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Payne. See 28 U.S.C. § 1915A. Accordingly, the court will order service of the Second

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Amended complaint upon Payne.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an order of service of the Second Amended Complaint (ECF

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No. 50), is GRANTED. Service of the amended complaint is appropriate for the following
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defendants: D. Wilson, S. Garcia, A. Rivas and A. Payne.

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2. Plaintiff’s earlier motion for an order of service of the Second Amended Complaint
(ECF No. 40), is DENIED as moot.

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3. The Clerk of the Court shall send plaintiff four (4) USM-285 forms, one summons, an

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instruction sheet, and a copy of the Second Amended Complaint filed September 30, 2014.

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4. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Submission of Documents and submit all of the following documents to the court at the

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same time:

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a. The completed, signed Notice of Submission of Documents;

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b. One completed summons;

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c. One completed USM-285 form for each defendant listed in number 1 above; and

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d. Five (5) copies of the endorsed Second Amended Complaint filed September 30,

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2014.

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5. Plaintiff shall not attempt to effect service of the amended complaint on defendants or

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request a waiver of service of summons from any defendant. Upon receipt of the above-described

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documents, the court will direct the United States Marshal to serve the above-named defendants

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pursuant to Federal Rule of Civil Procedure 4 without payment of costs.

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6. Plaintiff’s request for an extension of 60-days to conduct discovery (ECF No. 49) is

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GRANTED, plaintiff having shown due diligence in conducting discovery thus far. The

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Scheduling and Discovery Order (ECF No. 46 at 5 ¶¶ 6 & 7) is hereby AMENDED to state that

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(1) the parties may conduct discovery until April 13, 2015, and (2) all pretrial motions, except

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discovery motions to compel discovery, shall be filed on or before July 8, 2015, and the order is

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otherwise CONFIRMED.

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7. Defendants’ request for a twenty-one-day extension of time to respond to Plaintiff’s

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Interrogatories, Set One, and Requests for Admissions, Set One (ECF No. 51), is GRANTED.

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Defendants must serve responses by January 19, 2015.

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DATED: December 30, 2014

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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No. 2:13-cv-0576 KJM AC P
WILBUR ATCHERLEY,
Plaintiff,

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v.

NOTICE OF SUBMISSION OF
DOCUMENTS

J. HANNA, et al.,

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Defendants.
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Plaintiff submits the following documents in compliance with the court's order filed
_____________________:

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completed USM-285 forms

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completed summons form

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copies of the ___________________
Complaint

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DATED:

__________________________
PLAINTIFF

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