Spears et al v. El Dorado County Sheriff's Department et al

Filing 71

ORDER signed by Magistrate Judge Allison Claire on 12/2/2021 ORDERING Clerk to seal 69 Summons Returned Unexecuted and ORDERING within 14 days of the date of this order, plaintiff to inform the court whether he wishes: a)to keep Carol Armstrong as a named defendant in this action until the end of discovery phase, or b) to voluntarily dismiss defendant Armstrong. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRIAN SPEARS,

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No. 2:15-cv-0165 MCE AC P
Plaintiff,

v.

ORDER

EL DORADO COUNTY, et al.,
Defendants.

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Plaintiff, formerly an El Dorado County Jail inmate and currently a state prisoner

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proceeding pro se and in forma pauperis, is pursuing relief under 42 U.S.C. § 1983. The matter

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was referred to a United States Magistrate Judge for pretrial proceedings pursuant to 28 U.S.C. §

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636(b)(1)(B) and Local Rule 302.

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On November 30, 2021, the U.S. Marshal’s Office filed a summons returned unexecuted

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for defendant Carol Armstrong. See ECF No. 69. The document indicates that service attempted

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by U.S. Mail was unsuccessful. See id. Given that this is the second unsuccessful court-ordered

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attempt to locate defendant Armstrong (see ECF Nos. 47, 69), plaintiff will be directed to inform

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the court whether he wishes: (1) to keep defendant Armstrong as a named defendant in this action

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until the end of the discovery phase, or (2) to voluntarily dismiss her from this action. Should

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plaintiff opt to keep defendant Armstrong as a named defendant in this action, he will be

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obligated to make diligent efforts until the end of the discovery period to locate a current address

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for her so that she can be served.

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In addition, given that defendant El Dorado County was directed to provide the last known

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address of defendant Armstrong under seal (see ECF Nos. 60, 62), consistent with that order, the

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Clerk of Court will be directed to refile the November 30, 2021, unexecuted summons for

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defendant Armstrong (see ECF No. 69) under seal as well.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of Court is directed to refile the November 30, 2021, summons returned

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unexecuted (see ECF No. 69) under seal, and
2. Within fourteen days of the date of this order, plaintiff shall inform the court whether

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he wishes: (a) to keep Carol Armstrong as a named defendant in this action until the end of

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discovery phase, or (b) to voluntarily dismiss defendant Armstrong.

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Should plaintiff choose the first option, he is informed that a failure to locate and provide

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an accurate service address for defendant Armstrong to the court by the close of discovery will

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lead to her dismissal without prejudice from this action.

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DATED: December 2, 2021

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