Perkins v. Adams, et al.

Filing 21

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/17/17 ORDERING that Plaintiff's motions filed February 3, 2017 (ECF No. 18 ) are DENIED; Defendant Adams's motion for extension of time (ECF No. 16 ) is GRANTED nunc pro tunc; C ounsel for defendants shall take all steps necessary to enlist assistance from the CDCR to obtain Dr. Mansour's current or last known address so that the court can direct the U.S. Marshal to serve process without further delay; The U.S. Mars hal shall maintain the confidentiality of all information provided by the CDCR pursuant to this order; Once the court receives defendant Mansour's address, the court will direct the U.S. Marshal to execute service of process. If counsel for defendants cannot provide this information within 30 days of the date of this order, counsel shall so notify the court; and the Clerk of Court is directed to forward a copy of this order to the United States Marshal.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RANDY PERKINS,

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No. 2:16-cv-1791 CKD P

Plaintiff,
v.

ORDER

A. ADAMS, et al.,
Defendants.

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

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action pursuant to 42 U.S.C. § 1983. On October 14, 2016, the court determined that the First

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Amended Complaint (ECF No. 8, “FAC”) stated Eighth Amendment claims as to defendants

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Adams and Mansour, and ordered service on these defendants. (ECF No. 9.) Adams has been

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served and has answered the complaint. (ECF Nos. 19 & 20.) On December 7, 2016, a summons

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for Mansour was returned unexecuted because this defendant is no longer a corrections

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department employee. (ECF No. 14; see ECF No. 15.)

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Before the court is plaintiff’s motion to file a Second Amended Complaint (“SAC”) that

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names former Acting Attorney General Kathleen Kenealy as a defendant. (ECF No. 18) Plaintiff

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asks that the complaint be served on Kenealy as a proxy for Mansour “pending ascertainment of

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defendant Mansour’s location[.]” (Id. at 4.)

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Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be given
freely when justice requires. In deciding whether justice requires granting leave to amend, factors
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to be considered include the presence or absence of undue delay, bad faith, dilatory motive,

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repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing

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party, and futility of proposed amendment. Here, the court finds that justice does not require

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leave to amend as plaintiff’s claims are essentially the same as before.
However, good cause appearing, the court will direct defendants’ counsel to take all

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necessary steps to ascertain Mansour’s current address for purpose of service.
Additionally, the court will grant nunc pro tunc defendant Adams’s motion for an

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extension of time to answer the FAC. Adams filed an answer on February 9, 2017. (ECF No.

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20.)

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motions filed February 3, 2017 (ECF No. 18) are denied;

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2. Defendant Adams’s motion for extension of time (ECF No. 16) is granted nunc pro

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tunc;
3. Counsel for defendants shall take all steps necessary to enlist assistance from the

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CDCR to obtain Dr. Mansour’s current or last known address so that the court can direct the U.S.

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Marshal to serve process without further delay;

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4. The U.S. Marshal shall maintain the confidentiality of all information provided by the
CDCR pursuant to this order;
5. Once the court receives defendant Mansour’s address, the court will direct the U.S.

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Marshal to execute service of process. If counsel for defendants cannot provide this information

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within thirty (30) days of the date of this order, counsel shall so notify the court; and

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6. The Clerk of Court is directed to forward a copy of this order to the United States

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Marshal.

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Dated: February 17, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / perk1791.amend_address

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