Kinkeade v. Beard et al

Filing 74

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/7/2017 DENYING 57 Motion for Reconsideration; DENYING as moot 69 Request for Issuance of Summons directed to V. Caudill; and DENYING without prejudice 70 Amended Request for Issuance of Summons directed to V. Amparano. Plaintiff may file a formal motion for extension of time for service pursuant to Rule 4(m) of the Federal Rules of Civil Procedure before the close of the discovery period on 7/17/2017. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARLOS KINKEADE,

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Plaintiff,

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No. 2:15-cv-1375 TLN CKD P

v.

ORDER

JEFFERY BEARD, et al.,

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Defendants.

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Plaintiff, a California state prisoner, is proceeding through counsel with this 42 U.S.C.

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§ 1983 civil rights action against correctional officers A. Oddie and D. Claudel. ECF No. 1. On

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April 11, 2017, plaintiff filed a motion for reconsideration of the magistrate judge’s order denying

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leave to amend the complaint. Defendant has filed an opposition, ECF No. 61, and plaintiff has

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filed a reply, ECF No. 62.
Also pending before the court is plaintiff’s amended request for issuance of a summons

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for V. Amparano who was identified in the original complaint as Defendant D. Claudel. ECF No.

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70. Plaintiff filed a proposed first amended complaint substituting V. Amparano for D. Claudel

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as an exhibit attached to his amended request for a summons.1 See ECF No. 71.

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On June 27, 2017 plaintiff filed his first request for issuance of a summons along with a
proposed first amended complaint identifying the unserved defendant in this action as V. Caudill.
See ECF Nos. 68-69. That request was pending for only a day before plaintiff filed his amended
request.

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I.

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Plaintiff filed his motion for leave to amend the complaint in a piecemeal fashion. On

Procedural History

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March 30, 2017, just two days before the deadline to amend, plaintiff filed a “Notice of Motion

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for Order Granting Leave to Amend the Complaint.” ECF No. 53. However, the proposed first

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amended complaint was not filed until April 13, 2017 after the court denied plaintiff’s request by

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noting this deficiency in his filing. See ECF No. 55. A Memorandum of Points and Authorities

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in Support of the Motion for Leave to Amend was not filed until April 30, 2017 and it was filed

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as an exhibit to his reply to defendant’s opposition to his motion for reconsideration. ECF No.

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62-2.

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In his motion for reconsideration, plaintiff is asking the court to liberally construe his

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deficient two page Notice of Motion for Leave to Amend as the proposed amended complaint.

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See ECF No. 5701 at 7. Plaintiff’s motion for reconsideration is devoid of any legal authority for

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such requested relief. Id. Courts are only required to liberally construe pro se pleadings. Haines

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v. Kerner, 404 U.S. 519 (1972). That rule does not, and should not, apply to counsel who either

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do know better, or, at least, should know better.

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In this case, plaintiff has demonstrated a pattern of missing deadlines or of filing multiple

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motions in court in order to extend already agreed to deadlines based on his inability to meet

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them. His failure to file a timely response to Defendant’s Request for Admissions necessitated

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the filing of a “Motion for Miscellaneous Relief” which generated additional litigation based on

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his failure to meet a deadline. ECF No. 42. Additionally, plaintiff failed to meet the deadline for

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filing an amended pleading. Instead of simply filing a motion for leave to amend along with a

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proposed amended complaint by April 1, 2017, plaintiff filed a motion for an extension of time as

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well as a motion for reconsideration of this court’s denial. See ECF No. 33 (Order and Joint

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Scheduling Report). Every single pleading that plaintiff files concerning his missed deadlines

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requires this court’s time and attention. With this case history in mind, it is hard to believe

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plaintiff’s purported explanation for his failure to timely request leave to amend. See ECF No.

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57-2 at 3-4 (Declaration of Ken Karan) (stating that plaintiff “suspend[ed] action on the case”

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because he did not want to waste judicial resources).
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II.

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Pursuant to E.D. Local Rule 303(f), a magistrate judge’s orders shall be upheld unless

Legal Standards Governing Motion for Reconsideration

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“clearly erroneous or contrary to law.” In his motion to reconsider plaintiff seeks to demonstrate

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his diligence and reasonableness in filing his notice of motion for leave to amend on March 30,

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2017. ECF No. 57-1. However, the majority of the motion is simply a recitation of the

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procedural history of this case, of which the court is fully aware. Id. Rather than demonstrate

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any legal error made in the court’s April 10, 2017 ruling, plaintiff complains that it is simply

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“unfair” and that under “the totality of the circumstances” a manifest injustice is created by

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denying him leave to amend. See ECF Nos. 57-1 at 5-6; 62 at 2-3. Finding no new facts or

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circumstances and upon review of the entire file, the court finds that it does not appear that the

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court’s ruling is clearly erroneous or contrary to law. See Local Rules 230(j); 303(f).

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III.

Request for Issuance of Summons for V. Amparano

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The docket in this case reflects problems in obtaining service on Defendant D. Claudel as

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early as May 25, 2016 based on a minute order indicating that the United States Marshal “is

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attempting to locate defendant Claudel, as this defendant was not located at the address provided

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by plaintiff.” ECF No. 17. On November 10, 2016, the same day plaintiff’s counsel entered his

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appearance in this action, the summons for D. Claudel was returned unexecuted because the

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CDCR was unable to locate that name. See ECF Nos. 27, 28; Local Rule 182(a)(2) (describing

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what qualifies as making an appearance as attorney of record). No further action was taken by

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plaintiff to serve the summons on this defendant until June 27, 2017 when plaintiff filed his first

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request for issuance of a summons and a proposed first amended complaint naming V. Caudill as

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the proper name of this defendant. ECF Nos. 68, 69. A day later, plaintiff filed a second request

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for issuance of a summons and a proposed first amended complaint in the name of V. Amparano.

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ECF Nos. 70-71. Once again, plaintiff’s counsel has provided no explanation for the seven

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month delay in attempting to serve the summons on this defendant.

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Pursuant to Rule 4(c)(1) of the Federal Rules of Civil Procedure, “[t]he plaintiff is

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responsible for having the summons and complaint served within the time allowed….” See also

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Local Rule 210(d) (requiring counsel for plaintiff to effect service of process). Furthermore, “[i]f
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a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its

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own after notice to the plaintiff-must dismiss the action without prejudice against that defendant

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or order that service be made within a specified time. “ Fed. R. Civ. P. 4(m). The court shall

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permit additional time for service if there is good cause for the plaintiff’s failure to timely affect

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service of process. Id.

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Here, plaintiff filed the request for issuance of a summons in the corrected name of

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Defendant Claudel a mere eighteen days before the discovery period closes. See ECF No. 33

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(Order following Joint Scheduling Report). Plaintiff was aware of this discovery deadline

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because he agreed to it in December 2016, at the same time that he should have been aware of the

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service difficulties in this case just by a quick review of the court’s electronic docket. Moreover,

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plaintiff has not requested any extension of time for service pursuant to Rule 4(m) of the Federal

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Rules of Civil Procedure. He has not only failed to establish good cause for his failure to timely

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effect service, but there is no indication in the record that plaintiff has been diligent in his efforts

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to obtain the correct name of Defendant Claudel. See Fed. R. Civ. P. 4(m). Absent a motion or

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any indication of diligence by plaintiff, this court will not sua sponte issue an extension of time

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for service of process in this case where plaintiff is represented by counsel. See e.g., Efaw v.

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Williams, 473 F.3d 1038 (9th Cir. 2007) (finding that the trial court abused its discretion in

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denying defendant’s motion to dismiss based on plaintiff’s failure to comply with Rule 4’s timely

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service requirements); In re Sheehan, 253 F.3d 507, 512-513 (9th Cir. 2001) (stating that in the

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absence of good cause a court has the discretion to dismiss the complaint without prejudice or to

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extend the time period for service of process).

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Therefore, in light of the procedural history of this case as well as this court’s denial of

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plaintiff’s motion for leave to file an amended complaint changing the name of Defendant D.

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Claudel to V. Amparano, his request for a summons is denied.

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Therefore, IT IS HEREBY ORDERED that:

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1.

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2. Plaintiff’s request for issuance of a summons directed to V. Caudill (ECF No. 69) is

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Plaintiff’s motion for reconsideration (ECF No. 57) is denied;

denied as moot; and,
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3. Plaintiff’s amended request for issuance of a summons directed to V. Amparano (ECF

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No. 70) is denied without prejudice to the filing of a formal motion for an extension of

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time for service pursuant to Rule 4(m) of the Federal Rules of Civil Procedure before

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the close of the discovery period on July 17, 2017. Any such motion for an

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extension of time shall be accompanied by a motion to modify the discovery and

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scheduling order in this case.

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Dated: July 7, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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