Haraszewski v. Knipp

Filing 91

ORDER signed by Magistrate Judge Deborah Barnes on 12/16/2019 GRANTING IN PART 87 Motion for Service on Defendant Garcia. Within 10 days of the date of this order, counsel for Defendants shall contact CDCR to attempt to determine an address for Defendant Garcia. Within 15 days of the date of this order, counsel for Defendants to file and serve a statement with the court which either provides Garcia's address or explains why counsel was unable to obtain it. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 H. DYMITRI HARASZEWSKI, 12 13 14 15 No. 2:13-cv-2494 JAM DB P Plaintiff, v. ORDER KNIPP, et al., Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under 18 42 U.S.C. § 1983. Plaintiff alleges defendants retaliated against him, interfered with his mail, 19 placed him in segregation as a punitive measure, and deprived him of his property. On December 20 2, 2019, plaintiff filed a document requesting service of the complaint on defendant Garcia. For 21 the reasons set forth below, this court will give plaintiff an opportunity to attempt to have the 22 complaint served on Garcia. 23 24 25 BACKGROUND I. Allegations of the Third Amended Complaint This case is proceeding on plaintiff’s third amended complaint, filed July 21, 2017. (ECF 26 No. 42.) Plaintiff alleges that on November 26, 2011 at Mule Creek State Prison (“MCSP”), he 27 was removed from his cell and a large bag of his papers, books, and photos was confiscated. 28 Plaintiff was then notified that he was being placed in administrative segregation (“ad seg”) 1 1 because he was being investigated as a “threat to the safety and security” of the prison due to his 2 possession of “harassing materials.” Plaintiff contends the notice of the basis for the ad seg 3 placement was insufficient to permit him to argue he should not be placed there. He had three 4 formal hearings, one interrogation, and two informal discussions with officers about the basis for 5 the segregation. Plaintiff alleges that he never received any specific reason for his ad seg 6 placement. 7 Plaintiff further alleges that his cell in ad seg lacked a “desk, seat, bed, or any other basic 8 cell ‘amenity.’” It included only a toilet; a thin, bare mattress with no sheets on the concrete 9 floor; “very little personal property,” and no electricity for his appliances. Plaintiff was in this 10 cell for 34 days. 11 Plaintiff then spent several months attempting to have his property returned. During that 12 time, he was threatened by officers with harm if he did not stop complaining about the seizure of 13 his property. As a result of those threats, plaintiff stopped his attempts to obtain his property. 14 Finally, plaintiff alleges interference with his legal and other mail by several defendants. 15 II. Procedural History 16 When the court screened plaintiff’s third amended complaint, it found plaintiff stated 17 potentially cognizable claims against the following defendants: Austin, Sepulveda, Garcia, 18 Reese, Casagrande, Sherlock, Dowdy and Lucca. (ECF No. 51.) After plaintiff submitted service 19 documents for these eight defendants, the court ordered the United States Marshal to notify 20 defendants of their right to waive service of the complaint and, if they did not do so, to personally 21 serve the defendants. (ECF No. 54.) On June 8, 2018, executed waivers of service were returned 22 by all defendants except defendant Garcia. (See ECF No. 57.) 23 Due to a clerical error, the Marshal did not file the unexecuted return of service for 24 defendant Garcia until just recently. (See ECF No. 89.) That form states that the Marshal was 25 unable to serve defendant Garcia because “Per the Litco/Office of Legal Affairs for CDCR, R. 26 Garcia no longer works for MCSP or CDCR. Not willing to accept service.” 27 In June 2019, the court granted defendant Austin’s motion to dismiss. (ECF No. 79.) On 28 July 10, the remaining defendants, except for defendant Garcia, filed an answer (ECF No. 80) and 2 1 on August 20, the court issued a Discovery and Scheduling Order setting deadlines of December 2 20, 2019 for discovery and March 20, 2020 for non-discovery pretrial motions (ECF No. 84.) 3 The discovery deadline has been continued through January 20, 2020. (ECF No. 88.) 4 5 MOTION FOR SERVICE ON GARCIA Typically, when the Marshal is unable to serve a defendant, the plaintiff and the court are 6 informed right away. In this situation, the court will direct plaintiff to attempt to determine the 7 defendant’s address and, if he is unable to do so, to seek court help. Here, however, neither the 8 court nor plaintiff was informed that Garcia had not been served. Because this case has been 9 pending for a significant period of time, this court finds it in the interests of justice and most 10 efficient to direct defendants’ counsel to attempt to determine Garcia’s address by contacting 11 CDCR for Garcia’s forwarding information. 12 If Garcia’s contact information is available, this court will order the United States Marshal 13 to serve Garcia quickly. At that time, the court will consider extending any deadlines in this case. 14 However, if that contact information is not available, then the court cannot order service on 15 Garcia. Plaintiff may then attempt to locate Garcia. However, the court will not stay these 16 proceedings for that purpose. 17 Accordingly, IT IS HEREBY ORDERED as follows: 18 1. Plaintiff’s motion for service on defendant Garcia (ECF No. 87) is granted in part; 19 2. Within ten days of the date of this order, counsel for defendants shall contact CDCR to 20 21 attempt to determine an address for defendant Garcia. 3. Within fifteen days of the date of this order, counsel for defendants shall file and serve 22 a statement with the court which either provides Garcia’s address or explains why counsel was 23 unable to obtain it. 24 Dated: December 16, 2019 25 26 DLB:9/DB/prisoner-civil rights/hara2494.garc serv 27 28 3

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