McIntyre v. Wilson et al

Filing 28

ORDER REGARDING PLAINTIFFS RESPONSE TO MOTIONS TO DISMISS, VACATING HEARING AND CASE MANAGEMENT CONFERENCE, ADDRESSING SERVICE OF PROCESS AND ORDERING PLAINTIFF TO SHOW CAUSE WHY HIS CLAIMS AGAINST DEFENDANT CHUCK WILSON SHOULD NOT BE DISMISSED UNDER 28 U.S.C. § 1915(e)(2)(B). Show Cause Response due by 9/25/2012. Signed by Judge Claudia Wilken on 9/11/2012. (ndr, COURT STAFF) (Filed on 9/11/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LYNN MCINTYRE,

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Plaintiff,
v.
RICHARD WILSON; LAKE COUNTY
SHERIFF’S DEPARTMENT; CHUCK
WILSON; FRANCES WILSON; and DOES
1-5,
Defendants.

United States District Court
For the Northern District of California

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________________________________/

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No. C 12-3023 CW
ORDER REGARDING
PLAINTIFF’S
RESPONSE TO
MOTIONS TO
DISMISS, VACATING
HEARING AND CASE
MANAGEMENT
CONFERENCE,
ADDRESSING SERVICE
OF PROCESS AND
ORDERING PLAINTIFF
TO SHOW CAUSE WHY
HIS CLAIMS AGAINST
DEFENDANT CHUCK
WILSON SHOULD NOT
BE DISMISSED UNDER
28 U.S.C.
§ 1915(e)(2)(B)

On June 12, 2012, Pro se Plaintiff Lynn McIntyre filed the
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instant case against Defendants Lake County Sheriff’s Department,
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Richard Wilson, Frances Wilson and Chuck Wilson.

Compl., Docket

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No. 1.
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On August 14, 2012, Lake County Sheriff’s Department filed a
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motion to dismiss the claims asserted against it.

Docket No. 21.1

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On August 15, 2012, Richard and Frances Wilson also filed a motion
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to dismiss the claims asserted against them.

Docket No. 22.

Both

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motions were served upon Plaintiff by mailing.
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Civil Local Rule 7-3(a) provides that any opposition to a
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motion must be filed within fourteen days after the motion was
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This motion was originally filed on behalf of Lake County
Sheriff’s Department and Richard Wilson. It was later withdrawn
as to Richard Wilson only. Docket No. 26.

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filed if the motion was filed and served through the Court’s

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Electronic Case Filing (ECF) system, or within seventeen days

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after the motion was filed if the motion was served through other

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means, including by mailing it to the person’s last known address.

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Because the motions to dismiss were served by mailing, Plaintiff’s

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responses to the motions were due by August 31, 2012 and September

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1, 2012, respectively.

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Saturday and the following Monday was a court holiday, the time

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for Plaintiff to file his opposition to the second motion to

However, because September 1, 2012 was a

United States District Court
For the Northern District of California

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dismiss was extended to Tuesday, September 4, 2012, pursuant to

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Federal Rule of Civil Procedure 6(a)(1)(C).

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Plaintiff has not yet filed a response to either motion to

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dismiss.

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of this Order to do so.

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compliance with this Order will result in the dismissal of his

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claims against Lake County Sheriff’s Department and Richard and

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Frances Wilson for failure to prosecute.

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will be decided on the papers.

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conference currently set for October 4, 2012 at 2:00 p.m. are

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hereby vacated.

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The Court grants Plaintiff until one week from the date
Plaintiff’s failure to file responses in

The motions to dismiss

The hearing and case management

The Court notes that the remaining Defendant, Chuck Wilson,

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has not yet been served.

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motion for leave to proceed in forma pauperis (IFP), the Clerk

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requested that Plaintiff provide Defendants’ addresses so that a

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United States marshal could effectuate service.

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July 17, 2012, Plaintiff responded, stating that Chuck Wilson’s

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mailing address was P.O. Box 1124, Lower Lake, CA 95457 and that

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his business address was 16180 Jessie Street, Lower Lake, CA

After the Court granted Plaintiff’s

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Docket No. 8.

On

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95457.

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for Frances Wilson.

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marshal served Richard and Frances Wilson at Wilson Storage at the

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Jessie Street address.

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Richard Wilson, whom Plaintiff alleges is the owner of Wilson

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Storage, see Compl. 2, 9, 11, informed the marshal that he did not

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know who Chuck Wilson is but accepted service on behalf of himself

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and his wife, Frances Wilson, Docket Nos. 19 and 20.

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also notes that, although Plaintiff has included Chuck Wilson’s

Docket No. 14.

Plaintiff provided the same two addresses

Id.

On July 27, 2012, a United States

Docket Nos. 19 and 20.

At that time,

The Court

United States District Court
For the Northern District of California

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name in the caption of the complaint, he has not made any

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allegations directed toward this Defendant in the complaint or

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identified his connection to the events alleged therein.

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it appears that Plaintiff may have intended to identify Chuck

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Wilson as a pseudonym for Richard or Frances Wilson.

Further,

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Pursuant to Federal Rule of Civil Procedure 4(m), Chuck

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Wilson must be served by October 10, 2012, which is 120 days after

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the complaint was filed.

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Order, Plaintiff shall notify the Court whether he intended to

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identify Chuck Wilson as a separate Defendant or as an alternative

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name for either Richard or Frances Wilson, and if Plaintiff

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intended to name Chuck Wilson as a separate Defendant, Plaintiff

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must provide an alternative address for service upon this

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Defendant.

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will result in dismissal of Plaintiff’s claims against this

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Defendant for failure to prosecute.

Within fourteen days of the date of this

Failure to file a notice in response to this Order

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Finally, under the IFP statute, a court is under a continuing

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duty to dismiss a case filed without the payment of the filing fee

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whenever it determines that the action “(i) is frivolous or
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malicious; (ii) fails to state a claim on which relief may be

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granted; or (iii) seeks monetary relief against a defendant who is

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immune from such relief.”

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Because Plaintiff has not included in his complaint any

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allegations directed toward Chuck Wilson, it appears that

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Plaintiff has failed to state a claim upon which relief may be

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granted against him.

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fourteen days to show cause why his claims against Chuck Wilson

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should not be dismissed for this reason.

United States District Court
For the Northern District of California

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28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

Accordingly, Plaintiff is ordered within

IT IS SO ORDERED.

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Dated: 9/11/2012

CLAUDIA WILKEN
United States District Judge

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