Shotwell v. Noll et al

Filing 32

ORDER DISMISSING DEFENDANT J. CHUDY; DIRECTING CLERK TO REISSUE SUMMONS FOR DEFENDANT S. MUSGROVE. Signed by Judge Jeremy Fogel on 6/8/11. (dlm, COURT STAFF) (Filed on 6/17/2011)

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NOT FOR CITATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PRINCE DEON SHOTWELL, JR.,

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Plaintiff,

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vs.

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C. NOLLS, et al.,
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Defendants.
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No. C 10-01274 JF (PR)

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ORDER DISMISSING DEFENDANT J.
CHUDY; DIRECTING CLERK TO
REISSUE SUMMONS FOR
DEFENDANT S. MUSGROVE

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Plaintiff, a prisoner currently incarcerated at the California State Prison in

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Corcoran, filed the instant civil rights action in pro se pursuant to 42 U.S.C. § 1983

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against prison officials at the Correctional Training Facility (“CTF”) in Soledad for

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allegedly unconstitutional acts. The Court ordered service of Plaintiff’s amended

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complaint upon the named defendants. (See Docket No. 17.) The summons for

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Defendants J. Chudy and S. Musgrove were returned unexecuted on March 14, 2011,

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with the following remark: “Subject is no longer at the facility. The facility will not

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accept service.” (Docket Nos. 22 & 23.) On April 22, 2011, Plaintiff was directed to

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provide the Court with accurate current locations for Defendants Chudy and Musgrove

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within thirty days of the order to enable the Marshal to effect service. (Docket No. 28.)
Order Directing P to locate Ds
P:\PRO-SE\SJ.JF\CR.10\Shotwell01274_svc2.wpd

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Plaintiff was advised that failure to do so would result in the dismissal of his claims

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against these defendants without prejudice pursuant to Rule 4(m) of the Federal Rules of

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Civil Procedure. (Id. at 2.)

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On May 20, 2011, Plaintiff filed a response to the Court order, providing a new

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location for Defendant Musgrove at “SATF/State Prison.” (Docket No. 30.) However,

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Plaintiff provides no new information with respect to Defendant Chudy, restating that this

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defendant’s last location was CTF-Soledad, from which the initial summons was returned

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unexecuted. (See Docket No. 22.) Accordingly, the claims against Defendant Chudy

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must be dismissed without prejudice pursuant to Rule 4(m).

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CONCLUSION

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For the reasons stated above, the Court orders as follows:

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1.

All claims against Defendant J. Chudy are DISMISSED without prejudice

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pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. The Clerk shall terminate

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this defendant from this action.

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2.

The Clerk of the Court shall reissue summons and the United States

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Marshal shall serve, without prepayment of fees, a copy of the complaint in this matter,

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all attachments thereto, a copy of the Court Order filed March 7, 2011, (Docket No. 17),

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and a copy of this order upon Defendant S. Musgrove at the SATF/State Prison (P.O.

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Box 7100, Corcoran, CA 93212 on “G” Yard Facility). The Clerk shall also mail a

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courtesy copy of this order to the California Attorney General’s Office.

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3.

Defendant shall file a motion for summary judgment or other dispositive

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motion with respect to the claims in the complaint found to be cognizable, and briefing

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shall proceed thereafter, in accordance with the schedule and instructions set forth in the

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Court’s Order of Service, filed March 7, 2011, (Docket No. 17).

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IT IS SO ORDERED.
DATED:

6/8/11

JEREMY FOGEL
United States District Judge

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Order Directing P to locate Ds
P:\PRO-SE\SJ.JF\CR.10\Shotwell01274_svc2.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

PRINCE D SHOTWELL, JR.,

Case Number: CV10-01274 JF

Plaintiff,

CERTIFICATE OF SERVICE

v.
C NOLLS, et al.,
Defendants.

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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 6/17/11
, 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.

Prince Deon Shotwell H-05927
CA State Prison-Avenal
P.O. BOX 900
550 Yard 3
1 King Way
Avenal, CA 93204
Dated:

6/17/11
Richard W. Wieking, Clerk