Shotwell v. Brandt et al

Filing 10

ORDER VACATING ORDER GRANTING IN FORMA PAUPERIS STATUS; RESCINDING DIRECTIVE THAT PLAINTIFF PAY FULL FILING FEE; AND DIRECTING PLAINTIFF TO SHOW CAUSE WHY CLAIMS AGAINST UNSERVED NAMED DEFENDANTS SHOULD NOT BE DISMISSED. Signed by Judge Claudia Wilken on 4/18/2011. (ndr, COURT STAFF) (Filed on 4/18/2011)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

MANUEL E. SHOTWELL,

No. C 10-05232 CW (PR)

Plaintiff,

4
v.

5
6

S. BRANDT, et al.,

7

Defendants.
________________________________/

ORDER VACATING ORDER GRANTING
IN FORMA PAUPERIS STATUS;
RESCINDING DIRECTIVE THAT
PLAINTIFF PAY FULL FILING FEE;
AND DIRECTING PLAINTIFF TO
SHOW CAUSE WHY CLAIMS AGAINST
UNSERVED NAMED DEFENDANTS
SHOULD NOT BE DISMISSED

8
Plaintiff, a state prisoner currently incarcerated at Salinas
9
Valley State Prison (SVSP), has filed a pro se civil rights action
United States District Court
For the Northern District of California

10
pursuant to 42 U.S.C. § 1983.

Venue is proper because the events

11
giving rise to the claims in the complaint are alleged to have
12
occurred at the SVSP, which is located in this judicial district.
13
See 28 U.S.C. § 1391(b).
14
I.

Vacating Order Granting In Forma Pauperis Status

15
On December 15, 2010, the Court granted Plaintiff in forma
16
pauperis (IFP) status and, pursuant to 28 U.S.C. § 1915(b),
17
directed the SVSP Prisoner Trust Account Office to make monthly
18
deductions from Plaintiff's trust account until he had paid the
19
full $350.00 filing fee.

The Court also instructed Plaintiff to

20
pay an initial partial filing fee of $ 120.00.

However, the

21
Court's records indicate that Plaintiff actually paid the full
22
filing fee of $350.00 on December 16, 2010.

See Receipt Number

23
34611054023.

Therefore, the Court's Order granting IFP status to

24
Plaintiff is VACATED, and the directive that Plaintiff pay the full
25
filing fee is RESCINDED.
26
The Clerk of the Court shall send copies of this Order to the
27
Court's Finance Office and to the SVSP Prisoner Trust Accounts
28

1

Office.

2

all fee payments that have been deducted from his trust account and

3

sent to the Court pursuant to the December 15, 2010 Order.

4

II.

5
6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23

This Court's Finance Office shall reimburse Plaintiff for

Directing Plaintiff to Show Cause Why Claims Against Unserved
Named Defendants Should Not Be Dismissed
In his complaint, Plaintiff names the following Defendants:

SVSP Lieutenants S. Brandt, L. Negron and R. A. Kessler; SVSP
Sergeant B. Petersen; SVSP Warden G. Lewis; SVSP Appeals
Coordinators E. B. Jones, P. Nickerson and E. Medina; SVSP
Correctional Officers C. Santos, G. Gudino, S. Celaya and D.
Garcia; SVSP Captain W. Muniz; and Chief of Inmate Appeals Branch
N. Grannis.

Plaintiff seeks monetary damages.

To date, Plaintiff has not filed a proof of service on any of
the Defendants named above.

Rule 4(m) of the Federal Rules of

Civil Procedure provides:
If service of a summons and complaint is not made upon a
defendant within 120 days after the filing of the
complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss
the action without prejudice as to that defendant or
direct that service be effected within a specified time;
provided that if the plaintiff shows good cause for the
failure, the court shall extend the time for service for
an appropriate period.
Fed. R. Civ. P. 4(m).

Here, Plaintiff's complaint has been pending

for over 120 days and thus, absent a showing of "good cause,"
claims against the unserved defendants are subject to dismissal
without prejudice.

See Fed. R. Civ. P. 4(m).

24
Recognizing the fact that he is an incarcerated pro se
25
litigant, the Court finds good cause exists to extend the service
26
deadline under Rule 4(m).

Within thirty (30) days from the date of

27
this Order, Plaintiff shall file proof that he has served the named
28
2

1

Defendants.

2

all claims against these named Defendants without prejudice.

3

The failure to do so will result in the dismissal of

Even if a prisoner pays the fee and serves the complaint on

4

his own, the Court is still required to review the action before it

5

can proceed.

6

in a preliminary screening of cases in which prisoners seek redress

7

from a governmental entity or officer or employee of a governmental

8

entity.)

9

named Defendants, the Court will screen it in a separate written

United States District Court
For the Northern District of California

10

See 28 U.S.C. § 1915A(a) (federal courts must engage

Once Plaintiff has filed proof that he has served the

order.

11

It is Plaintiff's responsibility to prosecute this case.

12

Plaintiff must keep the Court informed of any change of address and

13

must comply with the Court's orders in a timely fashion.

14

to do so may result in the dismissal of this action for failure to

15

prosecute, pursuant to Federal Rule of Civil Procedure 41(b).

16

Failure

Extensions of time are not favored, though reasonable

17

extensions will be granted.

18

must be filed no later than fifteen (15) days prior to the deadline

19

sought to be extended.

20

IT IS SO ORDERED.

21
22

Any motion for an extension of time

DATED: 4/18/2011
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

23
24
25
26
27
28
3

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

1
2
3

MANUEL E SHOTWELL,
Case Number: CV10-05232 CW

4
5
6
7

Plaintiff,
CERTIFICATE OF SERVICE
v.
S BRANDT et al,
Defendant.

8
9
United States District Court
For the Northern District of California

10
11
12

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on April 18, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

13
14
15
16
17
18
19
20
21
22
23
24

Manuel Shotwell T-57486
D-7-118 low
Salinas Valley State Prison
P. O. Box 1050
Soledad, Ca 93960-1050
U.S. District Court’s Finance Office
San Francisco, CA
(sent via inter-office mail)
Salinas Valley State Prison
Prisoner Trust Accounts
P. O. Box 1050
Soledad, Ca 93960-1050
Dated: April 18, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

25
26
27
28
4