Watts v. Ruggiero et al

Filing 14

ORDER signed by Magistrate Judge Allison Claire on 4/21/14 ORDERING that The Findings and Recommendations 12 filed on March 24, 2014 are hereby VACATED. Plaintiffs motion for an extension of time 13 to file objections to the now vacated March 2 4, 2014 Findings and Recommendations is DENIED as moot. The Clerk of the Court shall provide to plaintiff a blank summons, a copy of pages 1 through 301 of the complaint filed August 22, 2013, five USM-285 forms and instructions for service of pro cess on defendants Ruggiero, Campbell, Audette, Marquez and Harrison. Plaintiff has thirty days to return the attached Notice of Submission of Documents with the completed summons, the completed USM-285 forms, and six copies of the August 22, 2013 complaint (pages 1 30). Plaintiffs election to proceed without amending his complaint is construed as consent to dismissal without prejudice of plaintiffs defective claims against defendants Chaus and Perez as well as of his claims for equal protection and injunctive relief.(Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

TIMOTHY WATTS,

12
13
14
15

No. 2:13-cv-1749 TLN AC P

Plaintiff,
v.

ORDER

M. RUGGIERO, et al.,
Defendants.

16
17

Plaintiff, a state prisoner proceeding pro se, filed a complaint pursuant to 42 U.S.C. §

18

1983. By order filed October 30, 2013, certain parties and claims were dismissed from plaintiff’s

19

complaint. Plaintiff was informed of the deficiencies of the complaint, and was granted leave to

20

amend within thirty days. Plaintiff was instructed that if he chose not to amend, electing instead

21

to proceed on the claims that survived screening, he must within thirty days return materials for

22

service on process on the defendants against whom he had stated cognizable claims. Plaintiff was

23

provided with the requisite service forms. Plaintiff was cautioned that failure to comply would

24

result in a recommendation of dismissal of this action. When plaintiff failed to respond to the

25

court’s order, the undersigned recommended dismissal of this action without prejudice. See ECF

26

No. 12 (Findings and Recommendations filed on March 24, 2014).

27
28

On April 11, 2014, plaintiff filed a motion for an extension of time to submit objections to
the pending Findings and Recommendations. ECF No. 13. In his motion, plaintiff avers that he
1

1

was “completely satisfied” with the order of October 30, 2013 and that he obtained the copies of

2

the complaint required to serve each defendant and mailed them to the court in November of

3

2013, along with the USM 285 forms and the summons. Plaintiff seeks the extension of time in

4

order to access his legal and personal property following his transfer from CSP-Corcoran to CSP-

5

Sacramento on March 25, 2014. Plaintiff contends that he has records that would demonstrate,

6

inter alia, the date upon which he returned the documents for service. Plaintiff includes the

7

declaration of another inmate declaring that both he and plaintiff obtained copies for their

8

respective documents in mid-November 2013 and that both mailed them to court on the same day.

9

Plaintiff has submitted his motion under penalty of perjury. The court, on this occasion, will not

10

require further proof that plaintiff submitted the requisite documents for service timely. Instead,

11

the undersigned will vacate the pending Findings and Recommendations and provide plaintiff

12

with a further opportunity to provide the requisite documents for service of his complaint. The

13

motion for an extension of time is therefore moot.

14

Accordingly, IT IS HEREBY ORDERED that:

15

1. The Findings and Recommendations (ECF No. 12) filed on March 24, 2014 are hereby

16

VACATED.

17
18

2.

Plaintiff’s motion for an extension of time (ECF No. 13) to file objections to the now-

vacated March 24, 2014 Findings and Recommendations is denied as moot.

19

3. The Clerk of the Court shall provide to plaintiff a blank summons, a copy of pages 1

20

through 301 of the complaint filed August 22, 2013, five USM-285 forms and instructions for

21

service of process on defendants Ruggiero, Campbell, Audette, Marquez and Harrison.

22

4. Plaintiff has thirty days to return the attached Notice of Submission of Documents

23

with the completed summons, the completed USM-285 forms, and six copies of the August 22,

24

2013 complaint (pages 1 – 30).

25

5. Plaintiff’s election to proceed without amending his complaint is construed as consent

26

to dismissal without prejudice of plaintiff’s defective claims against defendants Chaus and Perez

27
28

1

Pages 1-30 encompass the allegations, or body, of the 129-page complaint with the remainder
being exhibits.
2

1
2

as well as of his claims for equal protection and injunctive relief.
6. Failure to comply with this order will result in a recommendation that this action be

3

dismissed.

4

DATED: April 21, 2014

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

TIMOTHY WATTS,
Plaintiff,

11
12
13

No. 2:13-cv-1749 TLN AC P

NOTICE OF SUBMISSION OF
DOCUMENTS

v.
M. RUGGIERO, et al.,
Defendants.

14
15
16
17

Plaintiff submits the following documents in compliance with the court's order filed
___________________.

18

__1__

completed summons form

19

__5__

completed USM-285 forms

20

__6___

copies of the August 23, 2013 Complaint (pages 1-30).

21
22

Plaintiff has consented to the dismissal without prejudice of defendants Chaus and
Perez as well as for his claims for equal protection and injunctive relief. ______

23
24
25

DATED:
___________________________________
Plaintiff

26
27
28
4