(PC) Howell v. Moktar et al

Filing 37

ORDER signed by Magistrate Judge Deborah Barnes on 11/14/2023 GRANTING-IN-PART and DENYING-IN-PART Plaintiff's 33 Notice of Additional Information to Serve Defendant and Motion for Court Order and STRIKING the 34 Request for Court Order for CDCR to Forward Defendant's last known address. Within 30 days, counsel of record for defendants Childs, Johnson, Williamson, and Troja shall obtain from the CDCR the last known address it has on file for defendant J. Mokhtar and produce the address to the court via email. (Spichka, K.)

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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 KAREEM J. HOWELL, 12 No. 2:22-cv-00842 DB P Plaintiff, 13 v. 14 ORDER J. MOKTAR, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights 17 18 action seeking relief pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendants used 19 excessive force against him and retaliated against him in violation of the First and Eighth 20 Amendments. Presently before the court is plaintiff’s requests that the court direct the California 21 Department of Corrections and Rehabilitation (“CDCR”) and the California Attorney General’s 22 Office to help serve defendant Mokhtar.1 (ECF Nos. 33, 34.) For the reasons stated below, the 23 court will grant in part and deny in part the first request (ECF No. 33) and will strike the second 24 request (ECF No. 34). 25 //// 26 This defendant’s last name appears as “Moktar” on the docket, while the California Attorney General’s Office has spelled it “Mokhtar.” (See ECF No. 22.) Plaintiff uses various spellings of the name in his filings. (See ECF No. 33.) The court will use the spelling provided by the California Attorney General’s Office. 1 1 27 28 1 I. 2 Background On June 11, 2023, the court issued an order directing service on defendants Mokhtar, 3 Troja, Johnson, Childs, and Williamson. (ECF No. 15.) Because plaintiff identified these 4 defendants as CDCR employees at the time of the alleged violations, their information was 5 provided electronically to CDCR and the California Attorney General’s Office to effectuate 6 service, pursuant to the court’s E-Service pilot program for civil rights cases. (Id. at 2.) The 7 summons was returned unexecuted as to defendant Mokhtar because he no longer works for 8 CDCR. (ECF No. 24.) 9 On August 7, 2023, the court directed plaintiff to submit service documents to the U.S. 10 Marshal’s Service providing additional information to serve defendant Mokhtar. (ECF No. 25.) 11 The court’s order stated: “Plaintiff shall promptly seek such information through discovery, the 12 California Public Records Act, Calif. Gov’t. Code § 6250, et seq., or other means available to 13 plaintiff. If access to the required information is denied or unreasonably delayed, plaintiff may 14 seek judicial intervention.” (Id. at 1.) 15 The court received the required documents from plaintiff on September 26, 2023. (ECF 16 No. 32.) The U.S. Marshal’s Service attempted service on the address provided by plaintiff but 17 was informed that defendant Mokhtar did not live at the address. (ECF No. 35.) The summons 18 was returned unexecuted on September 27, 2023. (Id.) 19 20 Plaintiff’s requests II. Plaintiff included with the required documents a filing entitled “Additional Information 21 To Have This Defendant Served.” (ECF No. 33.) In it, plaintiff explains that he had previously 22 sued defendant Mokhtar in a separate action before this court, Howell v. Johnson, 2:20-cv-0520 23 (E.D. Cal.), and that defendant Mokhtar had been represented by the California Attorney 24 General’s Office in that action. (Id. at 1–2.) Plaintiff asks “that this court order 25 CDCR/defendants herein counsel to either continue representing defendant J. Mokhtor as well, 26 and see to it that service is complete” or to “assist the plaintiff herein, and this court in locating 27 defendant J. Mokhtor by providing defendant J. Mokhtor last known address given to CDCR.” 28 (Id. at 2.) 2 On October 13, 2023, the court received a document from plaintiff entitled “Plaintiff 1 2 Request to the Court, Ordering (CDCR) To Forward To the Court Defendant J. Mokhtar Last 3 Known Address.” (ECF No. 34.) Plaintiff did not sign or date the filing. 4 III. Analysis The court will grant in part and deny in part plaintiff’s first request. (ECF No. 33.) 5 6 “‘[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. 7 Marshal for service of the summons and complaint . . .’”. Jensen v. Knowles, 621 F. Supp. 2d 8 921, 930 (E.D. Cal. 2008) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)) 9 (alteration in original); see also Fed. R. Civ. P. 4(c)(3). The plaintiff must “act with diligence and 10 provide the Marshal with sufficient information to serve the defendant.” Id. In this case, plaintiff 11 has identified defendant Mokhtar’s last known attorney and CDCR as potential sources for this 12 information, based on a previous lawsuit plaintiff brought against defendant Mokhtar that was 13 dismissed in July 2022. (ECF No. 53, Howell v. Johnson, 2:22-cv-0520 (E.D. Cal.).) The 14 California Attorney General’s Office represented defendant Mokhtar in that action and represents 15 defendants Childs, Johnson, Williamson, and Troja in the instant action. (See ECF No. 33 at 3, 16 5–9; ECF No. 26.) 17 Accordingly, the court will order counsel for defendants Childs, Johnson, Williamson, and 18 Troja to obtain defendant Mokhtar’s last known address from CDCR and provide the address to 19 the court. 20 The court will order plaintiff’s second request (ECF No. 34) to be stricken because 21 plaintiff did not sign it. The court cannot consider unsigned filings. Fed. R. Civ. P. 11; E.D. Cal. 22 R. 131. 23 CONCLUSION 24 IT IS HEREBY ORDERED that: 25 1. Plaintiff’s notice of additional information to serve defendant J. Mokhtar and motion 26 27 28 for the court (ECF No. 33) is granted in part and denied in part. 2. Within thirty days of the date of this order, counsel of record for defendants Childs, Johnson, Williamson, and Troja shall: 3 1 a. 2 the last known address it has on file for defendant J. Mokhtar, and 3 b. 4 5 6 7 Obtain from the California Department of Corrections and Rehabilitation Produce the address to the court by emailing it to: dborders@caed.uscourts.gov. 3. Plaintiff’s request for a court order for CDCR to forward defendant’s last known address (ECF No. 34) is stricken because it is unsigned. Dated: November 14, 2023 8 9 10 DB: 15 DB/DB Prisoner Inbox/Civil Rights/R/howe0842.8e(2) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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