Hanna v. Chudy et al
Filing
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ORDER by Judge Lucy H. Koh denying 4 Motion for order of examination; denying 6 Motion for Discovery; denying 1 Motion for Extension of Time to File (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 5/25/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TIMOTHY HANNA,
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Plaintiff,
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v.
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J. CHUDY, G. ELLIS, C. HAMMOND, )
and D. FOSTON,
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Defendants.
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No. C 11-0862 LHK (PR)
ORDER ADDRESSING PENDING
MOTIONS; DIRECTING PLAINTIFF
TO FILE PROOFS OF SERVICE
(Docket Nos. 1, 4, 6)
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Plaintiff, a state prisoner proceeding pro se, filed the instant civil rights complaint
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pursuant to 42 U.S.C. § 1983, the Americans With Disabilities Act (“ADA”), and Section 504 of
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the Rehabilitation Act of 1973, concerning the conditions of his confinement at CTF - Soledad.
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Plaintiff has paid the filing fee. For the reasons stated below, the Court will direct Plaintiff to
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file proofs of service on Defendants.
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DISCUSSION
A.
Standard of Review
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Federal courts must engage in a preliminary screening of cases in which prisoners seek
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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). In its review the Court must identify any cognizable claims, and dismiss any claims
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that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek
Order Addressing Pending Motions; Directing Plaintiff to File Proofs of Service
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monetary relief from a defendant who is immune from such relief. 28 U.S.C § 1915A(b)(1), (2).
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Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,
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699 (9th Cir. 1990).
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under
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the color of state law committed a violation of a right secured by the Constitution or laws of the
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United States. West v. Atkins, 487 U.S. 42, 48 (1988).
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B.
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Plaintiff’s Claims
Liberally construed, Plaintiff has alleged cognizable claims of deliberate indifference to
his serious medical needs, and a violation of the ADA and Rehabilitation Act.
C.
Plaintiff’s Pending Motions
Plaintiff commenced this suit by filing a motion for enlargement of time to file his civil
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rights complaint. It appears he filed the motion in an effort to prevent his complaint from being
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dismissed as time-barred. In the motion, Plaintiff requested that the Court not dismiss his
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complaint for being untimely. At this time, the Court does not have enough information to
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determine whether any statute of limitation would bar Plaintiff’s suit. The motion is DENIED
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without prejudice to renewing the argument in an opposition to Defendants’ dispositive motion
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to dismiss the action as untimely, should they file such a motion.
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Plaintiff has also filed a motion for a Court-ordered medical examination by a podiatrist.
Federal Rule of Civil Procedure 35 provides, in relevant part:
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The Court where the action is pending may order a party whose mental or physical
condition - including blood group - is in controversy to submit to a physical or mental
examination by a suitably licensed or certified examiner.
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Fed. R. Civ. P. 35(a)(1). Plaintiff argues he needs to have a podiatrist examination because it
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will negate Defendants’ assertion that Plaintiff is “self-diagnosing.” Although a district court,
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pursuant to Rule 35, may, under appropriate circumstances, order a party to submit to a physical
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examination at the request of an opposing party, Rule 35 “does not vest the Court with authority
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to appoint an expert to examine a party wishing an examination of himself.” Smith v. Carroll,
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602 F. Supp. 2d 521, 526 (D. Del. 2009); see, e.g., Baker v. Hatch, 2010 WL 3212859, *3 (E.D.
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Cal. 2010) (finding no authority under Rule 35(a) to grant pro se prisoner plaintiff’s request for
Order Addressing Pending Motions; Directing Plaintiff to File Proofs of Service
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medical examination); Adams v. Epps, 2008 WL 4861926, *1 (S.D. Miss. 2008) (same); Cabrera
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v. Williams, 2007 WL 2682163, *2 (D. Neb. 2007) (same). Accordingly, Plaintiff’s request for a
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Court-ordered podiatrist examination pursuant to Rule 35 is DENIED. Plaintiff is not precluded,
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however, from retaining his own expert medical witness to examine him and render a medical
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opinion.
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Finally, Plaintiff requests a Court-order to compel Defendants to permit him to review his
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Central File via an “Olsen Review.” It appears that Plaintiff believes he needs to review his file
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in order to file the underlying federal civil rights complaint. Because Plaintiff has already filed
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his complaint, the motion is DENIED as moot.
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D.
Service
As plaintiff is not proceeding in forma pauperis in this action, he may not rely on the
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United States Marshal or the officers of the Court for service. Cf. 28 U.S.C. § 1915(d); Fed. R.
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Civ. P. 4(c)(2). Plaintiff is responsible for service of all of the named Defendants. No
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Defendant has made an appearance in this action. There is no indication in any of the papers
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filed herein that any Defendant has been served with the summons or complaint in accordance
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with the Federal Rules of Civil Procedure.
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Plaintiff shall bear in mind that Rule 4(m) of the Federal Rules of Civil Procedure require
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service of the summons and complaint upon Defendants within 120 days after the filing of the
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complaint. Fed. R. Civ. P. 4(m). Failure to do so may result in dismissal of the action without
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prejudice as to that Defendant.
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Accordingly, by July 26, 2011, Plaintiff is directed to provide the Court with proof of
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service of the summons and complaint on all defendants or show good cause why the unserved
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Defendants should not be dismissed. See Fed. R. Civ. P. 4(l), 4(m). Failure to comply by
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October 5, 2009 will result in the dismissal of the unserved Defendants.
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CONCLUSION
1.
Plaintiff’s motion for enlargement of time is DENIED without prejudice.
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Plaintiff’s motion for issuance of an order of examination is DENIED. Plaintiff’s motion for
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order to move Defendants to release discovery is DENIED.
Order Addressing Pending Motions; Directing Plaintiff to File Proofs of Service
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2.
Plaintiff is directed to file proofs of service on Defendants on or before July 26,
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2011, or show good cause for the failure. Failure to comply by July 26, 2011, will result in
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dismissal of the unserved Defendants.
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3.
It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the
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court informed of any change of address by filing a separate paper with the Clerk headed “Notice
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of Change of Address.” Plaintiff must comply with the Court’s orders in a timely fashion or ask
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for an extension of time to do so. Failure to comply may result in the dismissal of this action
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pursuant to Federal Rule of Civil Procedure 41(b).
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This order terminates docket nos. 1, 4, and 6.
IT IS SO ORDERED.
DATED:
5/25/11
LUCY H. KOH
United States District Judge
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Order Addressing Pending Motions; Directing Plaintiff to File Proofs of Service
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