Von Staich v. California Board of Parole Hearings et al

Filing 22

ORDER signed by Magistrate Judge Deborah Barnes on 11/22/2016 DENYING plaintiff's 18 ex parte motion requesting court to issue contempt findings against defendants. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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IVAN VON STAICH,

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Plaintiff,

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No. 2:15-cv-1182 JAM DB P

v.

ORDER

CALIFORNIA BOARD OF PAROLE
HEARINGS, et al.,
Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action. Before the court is plaintiff’s motion to hold the defendants in contempt. For the reasons

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set forth below, plaintiff’s motion is denied.
On May 12, 2016, the court determined that plaintiff’s first amended complaint appeared

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to state a cognizable claim for relief against defendants Ferguson and Fassnacht pursuant to 42

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U.S.C. § 1983 and 28 U.S.C. § 1915A(b). (ECF No. 9.) By order filed June 29, 2016, the court

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directed the U.S. Marshall to serve the complaint upon defendants Ferguson and Fassnacht. (ECF

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No. 15.) The order directed the Marshall to notify the defendants of this action and request a

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waiver of service within fourteen days. Unfortunately, that notification did not go out in a timely

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manner. On November 16, 2016, the Marshall filed waiver of service forms from both

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defendants. (ECF No. 21.) Those forms show that the waivers were sent to defendants on

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September 15, 2016.
On October 20, 2016, plaintiff filed a document entitled “Ex Parte Motion Requesting

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Court to Issue Contempt Findings Against Defendants.” (ECF No. 18.) Therein, plaintiff

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contends that defendants failed to comply with the court’s order filed June 29 by failing to

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respond to the complaint and that they should be held in contempt under Federal Rule of Civil

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Procedure 70(e) for violating a court order. While the court understands plaintiff’s frustration

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with the delay, that delay is not attributable to defendants. Defendants had sixty days to return

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their waiver of service forms after being served with those forms. (See June 29, 2016 Order (ECF

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No. 15) at 2.) Because defendants were served with the forms on September 15, 2016, the forms

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were due to be returned to the Marshall sixty days later, by November 14, 2016. The forms show

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that defendants signed them on November 1, within the sixty-day window. (ECF No. 21.) As

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set out in the court’s June 29 order, defendants are required to respond to the first amended

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complaint within sixty days after the request for waiver was sent. See also Fed. R. Civ. P 12(a).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s October 20, 2016 Ex Parte

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Motion Requesting Court to Issue Contempt Findings Against Defendants (ECF No. 18) is

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denied.

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Dated: November 22, 2016

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DLB:9
DLB1/prisoner-civil rights/vons1182.contempt

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