Newton v. Curzen et al

Filing 25

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 1/30/13. (lrc, COURT STAFF) (Filed on 1/31/2013)

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 OAKLAND DIVISION 8 9 CARDELL NEWTON, Plaintiff, 10 11 Case No: C 11-00309 SBA ORDER DISMISSING ACTION WITHOUT PREJUDICE vs. 12 OFFICER CURZEN and SAN QUENTIN STATE PRISON, 13 Defendants. 14 15 16 On January 21, 2011, Plaintiff Cardell Newton, acting pro se, filed the instant action 17 in this Court against Defendants Officer Curzen and San Quentin State Prison. Plaintiff, 18 who is not incarcerated and has paid the requisite filing fee of $350, alleges that Defendants 19 failed to timely send his legal mail to Judge Jeremy Fogel (formerly of this Court), which, 20 in turn, “denied [him] the right to contest a conviction.” Dkt. 1 at 5.1 This action was 21 originally assigned to Magistrate Judge Laporte, but was subsequently reassigned to the 22 undersigned. Dkt. 11. 23 24 1 Although Plaintiff does not identify the federal action, the Court’s docket indicates that Plaintiff previously filed a habeas petition that was assigned first to Judge Fogel and later to Judge Richard Seeborg. See Newton v. People of the State of Cal., No. C 08-3301 26 RS. On February 22, 2010, Judge Fogel dismissed the petition with leave to amend. The Order, however, was retuned as undeliverable. Judge Seeborg subsequently dismissed the 27 action on April 12, 2010. There is no indication in the docket that Plaintiff sought relief from the dismissal based on Defendants’ alleged failure to timely send his legal mail, as 28 alleged in the instant Complaint. 25 1 On April 25, 2012, the Court issued an order to show cause why the instant action 2 should not be dismissed for failure to comply with Federal Rule of Civil Procedure 4(m). 3 Dkt. 23. Generally, under Rule 4(m), the failure to serve a defendant within 120 days after 4 the complaint is filed requires that a court dismiss the action without prejudice against the 5 unserved defendant or require service to be accomplished within a specified time. Fed. R. 6 Civ. P. 4(m). However, courts have discretion under Rule 4(m) to extend the time for 7 service upon a showing of good cause. In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001). 8 9 In his response to the order to show cause, Plaintiff claims that he is innocent of the crime for which he was convicted in state court, and that Defendants’ actions caused him to 10 lose his federal challenge to that conviction. Dkt. 24 at 1. Plaintiff further states that he 11 should be allowed additional time to effect service on Defendants so that he can hire a 12 registered process server. Id. These contentions are unpersuasive. The merits of Plaintiff’s 13 case have no bearing on why he has yet to serve Defendants. Moreover, Plaintiff offers no 14 explanation why did not retain the services of a registered process server earlier in the 15 action. Moreover, in her May 6, 2011 Order, Magistrate Judge Laporte specifically warned 16 Plaintiff that he had not complied with Rule 4(m).2 Despite such warning, Plaintiff has 17 made no effort to properly serve Defendants since that time. Thus, given the record 18 presented, the Court finds that Plaintiff has failed to demonstrate good cause under Rule 19 4(m) for an extension of time to effect service. Accordingly, 20 IT IS HEREBY ORDERED THAT the instant action is DISMISSED WITHOUT 21 PREJUDICE under Federal Rule of Civil Procedure 4(m). The Clerk shall close the file 22 and terminate all pending matters.3 23 2 Judge Laporte issued an order to show cause why the action should not be dismissed based on Plaintiff’s failures to appear at the initial Case Management 25 Conference, to file a Case Management Statement, and to serve Defendants within the time specified by Rule 4(m). Dkt. 6. The action was reassigned to the undersigned before Judge 26 Laporte was able to rule on her order to show cause. 24 3 Prior to the issuance of the order to show cause by this Court, Plaintiff filed a motion for default judgment. Dkt. 22. However, the Clerk declined to enter defaults 28 against Defendants. Therefore, Plaintiff’s motion for default judgment is denied. 27 -2- 1 2 IT IS SO ORDERED. Dated: January 30, 2013 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 1 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 NEWTON et al, 5 6 7 8 Plaintiff, v. CURZEN et al, Defendant. / 9 10 Case Number: CV11-00309 SBA 11 CERTIFICATE OF SERVICE 12 13 14 15 16 17 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 January 31, 2013, 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. 18 19 21 Cardell Newton 718 33rd Street Oakland, CA 94609 22 Dated: January 31, 2013 20 23 Richard W. Wieking, Clerk By: Lisa Clark, Deputy Clerk 24 25 26 27 28 -4-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?