Lucero v. Armale et al

Filing 27

ORDER: 1) GRANTING MOTIONS REQUESTING COURT ASSISTANCE AND FOR EXTENSION OF TIME ECF Nos. 25 , 26 AND (2) RE-DIRECTING U.S. MARSHAL TO EFFECT SERVICE UPON DEFENDANTS ARMALE AND GILLIS PURSUANT TO Fed. R. Civ. P. 4(c)(3). Signed by Judge Barry Ted Moskowitz on 10/24/2019. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (sjm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JASON LUCERO,
CDCR #V-33131,

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ORDER:

Plaintiff,

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Case No.: 3:17-cv-00957-BTM-RBB

vs.

1) GRANTING MOTIONS
REQUESTING COURT
ASSISTANCE AND FOR
EXTENSION OF TIME
[ECF Nos. 25, 26]

S. ARMALE, Correctional Officer;
W. GILLIS, Officer,

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Defendants.

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AND

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(2) RE-DIRECTING U.S. MARSHAL
TO EFFECT SERVICE UPON
DEFENDANTS ARMALE AND
GILLIS PURSUANT TO
Fed. R. Civ. P. 4(c)(3)

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Jason Lucero (“Plaintiff”), currently incarcerated at the California Health Care
Facility (“CHCF”) in Stockton, California, is proceeding pro se in this case, and has filed
an Amended Complaint against two correctional officers at Richard J. Donovan
Correctional Facility (“RJD”) in San Diego. 1 See ECF No. 8. Unlike most prisoners,

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Plaintiff was incarcerated at California State Prison—Sacramento (“CSP-SAC”) in Represa, California,
when he first initiated this civil action 2½ years ago. See Compl., ECF No. 1 at 1. By the time he filed his
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Plaintiff is not proceeding in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)—

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he has instead prepaid the $400 civil and administrative filing fee required by 28 U.S.C.

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§ 1914(a). See ECF Nos. 9, 11.

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I.

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Procedural Background
On June 21, 2018, the Court screened Plaintiff’s Amended Complaint sua sponte

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as required by 28 U.S.C. § 1915A, and liberally construed his claims to arise under 42

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U.S.C. § 1983, as opposed to Bivens v. Six Unknown Named Agents of the Federal

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Bureau of Narcotics, 403 U.S. 388 (1971), because he alleges Defendants Armale and

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Gills, both state correctional officers at RJD, violated his constitutional rights while he

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was incarcerated there in June 2016. See ECF No. 13 at 5-9. So construed, the Court

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found Plaintiff’s Amended Complaint “contains Eighth Amendment claims sufficient to

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survive the ‘low threshold’ for proceeding past the sua sponte screening” required by 28

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U.S.C. § 1915A(b), but also noted that he “remain[ed] responsible for effecting service of

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the summons and his Amended Complaint.” Id. at 8-9. And while the Court tolled Fed. R.

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Civ. P. 4(m)’s 90-day time period for service while it conducted its mandatory screening,

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id. at 9 (citing Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 1191, 1204 n.8

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(9th Cir. 2014)), it ordered Plaintiff to either: 1) file a written request to the Clerk to issue

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a summons as to Defendants Armale and Gills so that he might use them to effect service

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of his Amended Complaint within 90 days, or 2) file a written request that the Court

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order service be effected on his behalf by the United States Marshal or deputy marshal

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pursuant to Fed. R. Civ. P. 4(c)(3). See ECF No. 13 at 10.

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Amended Complaint on January 9, 2018, Plaintiff had been transferred to Salinas Valley State Prison in
Soledad, California. See ECF No. 8 at 1. While he has not filed a formal change of address in conjunction
with his current Motion, the Court notes that he mailed it from CHCF in Stockton. See ECF No. 25 at 5.
After confirming that Plaintiff is indeed now incarcerated at CHCF, the Court has directed the Clerk of
the Court to amend the docket to include Plaintiff’s current address. See https://inmatelocator.cdcr.
ca.gov/Details.aspx?ID=V33131 (last visited Oct. 21, 2019). Plaintiff is cautioned, however, that it is his
duty to “keep the court and opposing parties advised as to his current address.” See S.D. Cal. CivLR
83.11(b).
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Thereafter, Plaintiff filed both a Motion Requesting U.S. Marshal Service and a

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renewed Motion to Appoint Counsel pursuant to 28 U.S.C. § 1915(e)(1). See ECF Nos.

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15, 17. On November 14, 2018, the Court denied Plaintiff’s request for appointment of

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counsel, but granted his Motion for U.S. Marshal service pursuant to Fed. R. Civ. P.

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4(c)(3). See ECF No. 18. The Court directed the Clerk of the Court to issue a summons as

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to Plaintiff’s Amended Complaint, and ordered Plaintiff to provide the U.S. Marshal with

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the information necessary to serve Defendants Armale and Gillis within the time

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provided by Fed. R. Civ. P. 4(m). See id. at 5-6. On December 10, 2018, the Clerk

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provided Plaintiff with material necessary to effect service via the U.S. Marshal. See ECF

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Nos. 19-20.
On August 27, 2019, after waiting eight full months for Plaintiff to serve

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Defendants Armale and Willis via the U.S. Marshal without response, the Court ordered

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Plaintiff to show cause (“OSC”) why his case should not be dismissed for failure to serve

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and/or prosecute pursuant to Fed. R. Civ. P. 4(m) and S. D. Cal. Civil Local Rule 41.1.

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See ECF No. 21; see also Fed. R. Civ. P. 5(d); S. D. Cal. CivLR 5.2 (“Proof of service of

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all papers required or permitted to be served, … must be filed in the clerk’s office

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promptly and in any event before action is to be taken thereon by the court or the

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parties.”); S.D. Cal. CivLR 41.1a. (“Actions or proceedings which have been pending in

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this court for more than six months, without any proceeding or discovery having been

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taken therein during such period, may, after notice, be dismissed by the court for want of

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prosecution[.]”).

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On September 20, 2019, and in response to the Court’s OSC, Plaintiff filed a

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Motion for Extension of Time. See ECF No. 22. On September 23, 2019, the Court

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granted Plaintiff’s Motion, and directed him to either file proof of service, or another

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motion for extension of time pursuant to Fed. R. Civ. P. 4(m), no later than October 21,

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2019. See ECF No. 23.

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On October 15, 2019, and October 18, 2019, respectively, Plaintiff filed a “Motion

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Requesting Assistance in Effecting Service on Defendants,” and a “Motion for Extension
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of Time.” See ECF Nos. 25, 26. He asks the Court to re-issue the materials he needs in

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order to serve Defendants Armale and Gillis, and requests an extension of time in which

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to do so because he has been assigned to the CHCF acute crisis unit, lacks access any law

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library, must solicit all supplies “via mail,” and was separated from all of his property,

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including copy of his complaint and the “service packet” the Court previously provided

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to him, as the result of a cell search. See ECF Nos. 25 & 26 at 1.

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II.

Discussion

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Rule 4 of the Federal Rules of Civil Procedure provides:

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[i]f a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.

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Fed. R. Civ. P. 4(m). “In the absence of service of process (or waiver of service by the

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defendant) . . . a court ordinarily may not exercise power over a party the complaint

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names as a defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344,

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350 (1999); Crowley v. Bannister, 734 F.3d 967, 974-75 (9th Cir. 2013) (“A federal court

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is without personal jurisdiction over a defendant unless the defendant has been served in

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accordance with Fed. R. Civ. P. 4.”) (citations omitted).

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As the Court noted in its August 27, 2019 OSC, the 90 days provided by Fed. R.

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Civ. P. 4(m) to effect service has elapsed in this case; and no proof of service upon any

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Defendant has yet to be filed. See Fed. R. Civ. P. 4(l)(1) (“[P]roof of service must be

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made to the court.”); S.D. Cal. CivLR 5.2; Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th

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Cir. 1994) (where a pro se plaintiff fails to provide the Marshal with sufficient

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information to effect service, the court’s sua sponte dismissal of those unserved

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defendants is appropriate under Fed. R. Civ. P. 4(m)). However, the district court has

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broad discretion under Rule 4(m) to extend time for service upon a showing of good

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cause even after the service period has expired. See Mann v. American Airlines, 324 F.3d

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1088, 1090 (9th Cir. 2003).
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Here, the Court finds Plaintiff’s mental illness and serial transfers between CDCR

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facilities over the course of this litigation are sufficient to show good cause to extend the

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time permitted for Plaintiff to execute service in this case. See Eldridge v. Block, 832

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F.2d 1132, 1136 (9th Cir. 1987) (“‘[S]trict time limits ... ought not to be insisted upon’

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where restraints resulting from a pro se prisoner plaintiff’s incarceration prevent timely

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compliance with court deadlines.”) (citing Tarantino v. Eggers, 380 F.2d 465, 468 (9th

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Cir. 1967)). Prosecution has stalled for more than two years, however, and Plaintiff’s

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claims against Defendants Armale and Gillis are alleged to have arisen in June 2016—

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more than three years ago. Therefore, Plaintiff is hereby cautioned that no additional

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extensions of time pursuant to Fed. R. Civ. P. 4(m) will be granted. While a court’s

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discretion under Rule 4(m) is broad, “no court has ruled that the discretion is limitless.”

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Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007).

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III.

Conclusion and Orders

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Accordingly, the Court hereby:

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1)

GRANTS Plaintiff’s Motion Requesting Court Assistance in Effecting

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Service (ECF No. 25) and Motion for Extension of Time (ECF No. 26) and finds good

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cause to extend the time in which he must serve Defendants Armale and Gillis pursuant

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to Fed. R. Civ. P. 4(m).

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2)

DIRECTS the Clerk of the Court to provide Plaintiff with an additional

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“IFP Package” consisting of: (a) this Order; (b) the Court’s November 14, 2018 Order

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Directing U.S. Marshal Service as to Plaintiff’s First Amended Complaint (ECF No. 8);

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(c) three certified copies of Plaintiff’s Amended Complaint; (d) a re-issued summons as

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to Plaintiff’s Amended Complaint; and (e) two blank USM Form 285s for Plaintiff’s use

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in serving Defendants Armale and Gillis.

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3)

ORDERS Plaintiff to complete, as accurately and clearly as possible, the

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new USM Marshal Form 285s provided to him, to include an address where Defendants

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Armale and Gillis may be served, see S.D. Cal. CivLR 4.1(c), and to return them,

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together with the Clerk’s re-issued summons and two copies of his Amended Complaint,

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to the U.S. Marshal no later than November 22, 2019.

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ORDERS the U.S. Marshal or a deputy marshal, within 30 days of receiving

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Plaintiff’s completed USM Form 285s, but in no event later than December 23, 2019,

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to effect service of his Amended Complaint and summons upon Defendants Armale and

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Gillis as directed by Plaintiff, and to thereafter file proof of that service, or proof and

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explanation as to the reasons why service was not executed, with the Clerk of the Court.

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All costs of service will be advanced by the United States pursuant to the Court’s

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November 14, 2018 Order directing service pursuant to Fed. R. Civ. P. 4(c)(3). See ECF

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No. 18.

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5)

ORDERS Defendants Armale and Gillis, once they have been served, to

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reply to Plaintiff’s Amended Complaint within the time provided by the applicable

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provisions of Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while

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Defendants may occasionally be permitted to “waive the right to reply to any action

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brought by a prisoner confined in any jail, prison, or other correctional facility under

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section 1983,” once the Court has conducted its sua sponte screening pursuant to 28

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U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination

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based on the face on the pleading alone that Plaintiff has a “reasonable opportunity to

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prevail on the merits,” the Defendants are required to respond).

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ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’

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counsel, a copy of every further pleading, motion, or other document submitted for the

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Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every

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original document he seeks to file with the Clerk of the Court, a certificate stating the

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manner in which a true and correct copy of that document has been was served on

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Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2.

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Any document received by the Court which has not been properly filed with the

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Clerk or which fails to include a Certificate of Service upon the Defendants, or their

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counsel, may be disregarded.

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IT IS SO ORDERED.

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Dated: October 24, 2019

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