Fialho v. Herrera et al
Filing
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ORDER Directing Clerk to Send IFP Package to Plaintiff (Third Attempt). Plaintiff's time for service is extended until March 28, 2015. Signed by Magistrate Judge Mitchell D. Dembin on 12/11/2014. (All non-registered users served via U.S. Mail Service) (srm)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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SCOTT F. FIALHO,
Case No.: 14cv1378-GPC-MDD
Plaintiff,
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v.
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ORDER DIRECTING CLERK
TO SEND IFP PACKAGE TO
PLAINTIFF (THIRD
ATTEMPT)
G.HERRERRA; KISSOL;
ANDERSON;
Defendants.
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Before the Court is a letter from Plaintiff, which this Court
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construes as a Notice of Change of Address and a Motion for In Forma
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Pauperis (“IFP”) Package. (ECF No. 11). For the reasons set forth
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below, the Court GRANTS Plaintiff’s request that the Court re-send
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the documents mailed to him on October 7, 2014 (the IFP package).
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14cv1378-GPC-MDD
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Scott Fialho (“Plaintiff”), a prisoner currently incarcerated at
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Calipatria State Prison, and proceeding pro se and in forma pauperis,
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has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF
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Nos. 1, 3). On June 17, 2014, this Court issued an Order directing the
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Clerk, inter alia, to forward the summons to Plaintiff along with a
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blank U.S. Marshal Form 285 for each defendant, a certified copy of the
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June 17, 2014 Order, a certified copy of the complaint (ECF No. 1), and
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the summons “so that he may serve each named Defendant.” (ECF No.
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3 at ¶ 4). The Order also stated that “[u]pon receipt of this “IFP
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Package,’ Plaintiff is directed to complete the Form 285s as completely
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and accurately as possible, and to return them to the United States
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Marshal according to the instructions provided by the Clerk in the
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letter accompanying his IFP Package.” (Id.). On June 18, 2014, the
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Clerk issued the summons and mailed the IFP Package to Plaintiff.
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(ECF No. 4).
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The IFP Package never reached Plaintiff; the correctional facility
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he was housed in at the time rejected it for unknown reasons. (ECF
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Nos. 5, 8). Consequently, this Court ordered the Clerk to re-issue the
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IFP package a second time. (ECF No. 8). The order was entered on
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October 7, 2014, and the IFP package was re-issued the same day.
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(ECF Nos. 8, 9).
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On November 29, 2014, Plaintiff filed a letter that notifies that
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Court that Plaintiff was transferred from Calipatria State Prison to R.
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J. Donovan Correctional Facility during the week of October 5 through
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October 13. (ECF No. 11). Plaintiff further explains that he did not
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receive “all” of his property after the transfer until November 24, 2014.
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(Id.). When he received his property, Plaintiff learned that this Court
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had sent him a “10-7-2014 box full of legal mail.” (Id.). Plaintiff did not
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receive the “10-7-2014 box full of legal mail,” and requests that this
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Court re-send it to him.
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Plaintiff cannot fulfill his duties to provide the Marshal Service
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with the documents necessary to serve Defendants until he has first
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received the IFP Package. After reviewing the record, the Plaintiff
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never received the IFP Package even though the Clerk properly mailed
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it to him twice. Accordingly, the Court hereby ORDERS the Clerk to
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send the IFP Package to Plaintiff again (this time to his new address at
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R. J. Donovan, listed on his letter), along with certified copies of this
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order and the Court’s October 6, 2014 order.
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In addition, this Court finds good cause to extend Plaintiff’s time
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limit for service under Rule 4(m) by 176 days—the amount of time
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equal to the period between the date this Court first issued the IFP
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package (June 18, 2014) and today. In other words, this Court hereby
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ORDERS that Plaintiff’s time for service is extended until March 28,
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2015.
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IT IS SO ORDERED.
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Dated: December 11, 2014
Hon. Mitchell D. Dembin
U.S. Magistrate Judge
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14cv1378-GPC-MDD
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