Henderson v. Lewis et al

Filing 31

ORDER by Judge Haywood S. Gilliam, Jr. REGARDING UNSERVED DEFENDANT; DENYING PLAINTIFFS 28 MOTION FOR ORDER DIRECTING DEFENDANTS TO FILE RESPONSIVE PLEADING. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 9/13/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DARREN HENDERSON,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-06977-HSG (PR)
ORDER REGARDING UNSERVED
DEFENDANT; DENYING
PLAINTIFF’S MOTION FOR ORDER
DIRECTING DEFENDANTS TO FILE
RESPONSIVE PLEADING

v.
J. LEWIS, et al.,
Defendants.

Re: Dkt. No. 28

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INTRODUCTION
Plaintiff, an inmate at California State Prison–Sacramento, proceeding pro se, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 against officials and staff at Salinas Valley State

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Prison (“SVSP”), where he was previously incarcerated. On July 9, 2018, the Court screened

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plaintiff’s amended complaint and found that it stated a cognizable Eighth Amendment claim of

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deliberate indifference to serious medical needs. Service was ordered on five defendants. On July

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13, 2018, the summons for defendant Nurse Rodriqez was returned unexecuted with the following

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remark by the United States Marshal: “CDCR is unable to identify an employee with given last

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name.” Docket No. 22. The other four defendants, L. Gamboa, K. Kumar, J. Lewis, and C.

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Watson, have been served and have filed a waiver of reply.

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On July 19, 2018, the Court ordered plaintiff to either effect service on defendant Rodriqez

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or provide the Court with his current location such that the Marshal could affect service. Now

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before the Court is plaintiff’s response to the Court’s directions regarding defendant Rodriqez.

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Plaintiff has also filed a motion requesting a court order directing the defendants to file a

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responsive pleading to the amended complaint.

DISCUSSION

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A.

Unserved Defendant
Plaintiff has filed a notice providing the Court with the following additional information

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for the unserved defendant: (1) defendant’s name is J. Rodriquez; (2) defendant is a licensed

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vocational nurse (“LVN”); and (3) defendant was employed at the SVSP C-Facility from June

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2016 to January 2017. The Court will re-issue service pursuant to the instructions below.

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B.

Motion for Responsive Pleading
Plaintiff’s motion for an order directing defendants L. Gamboa, K. Kumar, J. Lewis, and

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C. Watson to file an answer to his amended complaint is DENIED. Defendants “may waive the

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right to reply to any action brought by a prisoner . . . under section 1983 of this title or any other

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United States District Court
Northern District of California

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Federal law.” 42 U.S.C. § 1997e(g)(1). Defendants L. Gamboa, K. Kumar, J. Lewis, and C.

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Watson have filed waivers of the right to reply, which was a permissible response under § 1997

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e(g)(1) to plaintiff’s amended complaint. Although “the court may require any defendant to reply

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to a complaint brought under this section if it finds that the plaintiff has a reasonable opportunity

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to prevail on the merits,” 42 U.S.C. § 1997e(g)(2), the Court declines to do so at this time. If the

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case gets beyond the summary judgment stage and moves closer to trial, if there will be a trial,

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the Court will on its own motion consider ordering defendants to file an answer to the amended

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complaint.
CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1. Plaintiff’s motion for an order directing defendants to file a responsive pleading is

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DENIED.
2. The Clerk shall re-issue summons and the United States Marshal shall serve, without

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prepayment of fees, a copy of the first amended complaint in this matter (dkt. no. 16), all

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attachments thereto, a copy of the Court’s July 9, 2018 screening order (dkt. no. 18), and a copy of

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this order on defendant LVN J. Rodriquez at Salinas Valley State Prison.

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The Clerk is further directed to correct the spelling of defendant Rodriquez’s name on the
court docket by substituting “LVN J. Rodriquez” for “Rodriqez.”
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3. The Clerk shall send a copy of this order to the Litigation Coordinator at Salinas Valley

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State Prison, who is requested to file notice with the Court as to whether defendant LVN J.

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Rodriquez can been identified with the additional information provided by plaintiff as stated above

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within twenty-eight (28) days from the date this order is filed. If there is no such person, the

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Litigation Coordinator is requested to file notice whether a person with the last name “Rodriguez”

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matches the identifying information provided by plaintiff. If the defendant can be identified but is

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no longer at SVSP, the Litigation Coordinator is requested to provide to the Court any forwarding

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address information and last known address that is available within twenty-eight (28) days from

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the date of this order. A non-CDCR address should be provided under seal.
This order terminates Dkt. No. 28.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: 9/13/2018

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HAYWOOD S. GILLIAM, JR.
United States District Judge

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