Washington v. R.J. Donovan Correctional Facility et al

Filing 58

ORDER Granting 48 Plaintiff's Request for Extension of Time to File; Granting 50 Plaintiff's Motion to Amend Complaint; and Granting in Part 52 Plaintiff's Request for an Order Directing Service by the U.S. Marshal. The Court di rects the Clerk to issue a summons as to Plaintiff's First Amended Complaint (doc. 55) and forward it to Plaintiff, along with a blank U.S. Marshal Form 285 for each of the remaining Defendants. In addition, the Clerk will provide Plaintiff with a filed copy of this order, a certified copy of his First Amended Complaint, and the summons, so that he may serve these defendants. The Court orders Defense Counsel to provide identifying information, insofar as obtaining such information is reason able, for the three unserved Defendants in this matter. The Court orders the U.S. Marshal to serve a copy of the First Amended Complaint and Summons upon the remaining Defendants as directed by Plaintiff on the USM Form 285s provided to him. All costs of that service will be advanced by the United States. Signed by Magistrate Judge Ruth Bermudez Montenegro on 10/25/2018. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TRACYE B. WASHING TON,

Case No.: 3:17-cv-01615-MMA-RBM
Plaintiff,

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O'DELL, et al,

ORDER:

v.
1. GRANTING PLAINTIFF'S REQUEST
FOR EXTENSION O F TIME TO FILE

Defendants.

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[Doc. 48];
2. GRANTING PLAINTIFF'S MOTION
TO AMEND COMPLAINT [Doc. 50];

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and

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3. GRANTING IN PART PLAINTIFF'S

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REQUEST FOR AN ORDER
DIRECTING SERVICE BY THE U.S.

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MARSHAL [Doc. 52].

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Before the Court are three motions filed by Plaintiff TRACYE B. WASHING TON,

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a prisoner proceeding

in pro per and in forma pauperis. The first is a Request for an

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Extension of Time to file a first amended complaint, made on the grounds that Plaintiff

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was actively involved in another case, and that he suffered an injury that left him

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wheelchair-bound. (Doc. 48, at 1-2.) The second is a Motion to Amend the Complaint for

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the purpose of naming"John Doe" defendants. (Doc. 50.) Finally, Plaintiff filed a Request

3:17-cv-01615-MMA-RBM

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that the Court order the California Department of Corrections and Rehabilitation

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( CDCR") to assist the U.S. Marshal in executing service on the unserved Defendants.
"

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(Doc. 52.)

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I. PLAINTIFF'S REQUEST FOR EXTENSION OF TIME

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Pursuant to the Scheduling Order issued by the Court on August 7, 2018, "any

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motion to join other parties, to amend the pleadings, or to file additional pleadings" should

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have been filed by August 24, 2018. (Doc. 44.) Plaintiff requested an extension to file a

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First Amended Complaint because he is representing himself in another matter that was set

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for trial on August 20, 2018 and because he suffered a traumatic injury which has left him

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wheelchair bound. (Doc. 48, at 1- 2.) Also, Plaintiff's Request for Extension of Time, as

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well as his Motion for Leave to Amend, were filed before the deadline contained in the

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Scheduling Order. (Doc. 44.) The Court finds that these circumstances constitute good

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cause to grant Plaintiff's request.

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II. PLAINTIFF'S MOTION FOR LEAVE TO AMEND

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Plaintiff also seeks leave of Court to amend his Complaint to allege the true names

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of two defendants previously identified as John Doe and Jane Doe. (Doc. 50, at 1.) On

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September 24, 2018, Plaintiff filed his First Amended Complaint: the Court accepted and

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filed it

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Defendants (each of whom had been previously served) filed an Answer to Plaintiff'sFirst

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Amended Complaint. (Doc. 56.)

nunc pro tune to September 20, 2018. (Doc. 55.) On October 10, 2018, five named

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The Ninth Circuit has noted "on several occasions ... that the 'Supreme Court has

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instructed the lower federal courts to heed carefully the command of Rule 15(a), F[ed]. R.

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Civ. P., by freely granting leave to amend when justice so requires."'

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Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir.1986) (quoting Howey

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States, 481F.2d 1187, 1190 (9th Cir.1973) (citations omitted). Thus,"[r]ule 15's policy of

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favoring amendments to pleadings should be applied with 'extreme liberality.' "

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Webb, 655F.2d 977, 979 (9th Cir. 1981) (citing Rosenberg Brothers

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&

Co.

Gabrielson

v.

v.

v.

United

US.

v.

Arnold, 283

F.2d 406 (9th Cir. 1960) (per curiam)). This liberality in granting leave to amend is not
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3:17-cv-01615-MMA-RBM

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dependent on whether the amendment will add causes of action or parties, but it is subject

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to several qualifications.

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1987.) Five factors are taken into account to assess the propriety of a motion for leave to

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amend: bad faith, undue delay, prejudice to the opposing party, futility of the amendment,

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and whether the plaintiff has previously amended the complaint.

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348 F.3d 815, 818 (9th Cir.2003).

DCD Programs, Ltd.

V

Leighton, 833 F.2d 183, 186 (9th Cir.

See Nunes

v.

Ashcroft,

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The Court finds that amending the Complaint to allege the correct names of

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Defendants already alleged as"Doe" Defendants is proper because (1) the amendment, on

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its face, is not made in bad faith; (2) there is no prejudice to the opposing parties in alleging

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the true names of"Doe" defendants; (3) the Motion is not made after an undue delay, but

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only a short delay and after a noticed motion; (4) the amendment is not futile because

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Plaintiff may have valid claims against the now-named defendants that could survive

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dispositive motions; and (5) Plaintiff had not yet amended the Complaint. On balance,

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given these factors and the policy of liberally granting leave to amend, the Court finds it

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proper to grant Plaintiff leave to amend the Complaint. In any event, Plaintiff has already

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filed a First Amended Complaint (doc. 55), and the served defendants have answered the

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First Amended Complaint (doc. 56).

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III. PLAINTIFF'S REQUEST FOR AN ORDER DIRECTING SERVICE BY

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U.S. MARSHAL

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Plaintiff moves the Court for an order requiring the California Department of

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Corrections and Rehabilitation to provide assistance in executing service of the Summons

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and Complaint in this action as to Defendants M. Costello and Nunez. (Doc. 52, at 1.)

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Plaintiff argues that it has been eight months since the Court directed service by the U.S.

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Marshal upon said defendants, and Plaintiff is therefore unable to conduct discovery as to

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these defendants.

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(Id.)

Pursuant to 28 U.S.C. § 1915(d), if a plaintiff is authorized to proceed

in forma

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pauperis,"officers of the court shall issue and serve all process." The Court must appoint

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the U.S. Marshal to effect service, and upon such an order the Marshal must serve the
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summons and complaint.

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Marshal is ordered to effect service, the standard 90-day window to serve Defendants is

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expanded to within 120 days of filing the operative complaint.

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note, 20I5 Amendment, Subdivision (m).

(See Federal Rule of Civil Procedure 4(c)(3).) When the U.S.

See Fed. R. Civ. Pro. 4(m)

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Here, the First Amended Complaint names two additional defendants, A. Canedo,

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and C. Covel, but fails to name ''Nunez." (Doc. 52.) In fact, the First Amended Complaint

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makes no mention of ''Nunez" at all, a notable difference from the original Complaint.

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(Compare doc. 52 and doc. 4.) For purposes of Plaintiff's Motion the court will consider

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"Nunez" a voluntarily-dismissed defendant. Therefore, the only Defendants who remain

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unserved are A. Canedo, C. Covel and M. Costello. The 120-day time period to effect

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service of the First Amended Complaint ends on December I3, 20I8. If Plaintiff timely

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furnishes the U.S. Marshal with the information necessary to identify these unserved

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Defendants, service would likely be effectuated within the deadline.

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The Court cannot direct the CDCR to disclose the locations of the unserved

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defendants to Plaintiff because the Court does not have jurisdiction over the CDCR in this

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action.

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defense counsel is in a position to provide it to Plaintiff, which would assist in the service

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of process. In the interests of judicial economy and expeditious litigation, defense counsel

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should provide the information to Plaintiff.

However, even though Plaintiff could obtain this information via discovery,

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IV. CONCLUSIONS AND ORDERS

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For the reasons discussed above, the Court:

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I.

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GRANTS Plaintiff's Request for an Extension of Time to file his First

Amended Complaint. (Doc. 48.)

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2.

GRANTS Plaintiff's Motion for Leave to Amend. (Doc. 50.)

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3.

GRANTS IN PART, Plaintiff's Request for an Order Directing Service by

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the U.S. Marshal. (Doc. 52.)
4.

DIRECTS the Clerk to issue a summons as to Plaintiff's First Amended

Complaint (doc. 55) and forward it to Plaintiff, along with a blank U.S. Marshal Form 285
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for each of the remaining Defendants. In addition, the Clerk will provide Plaintiff with a

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filed copy of this order, a certified copy of his First Amended Complaint, and the summons,

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so that he may serve these defendants.

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5.

ORDERS Defense Counsel to provide identifying information, insofar as

obtaining such information is reasonable, for the three unserved Defendants in this matter.
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ORDERS the U.S. Marshal to serve a copy of the First Amended Complaint

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and Summons upon the remaining Defendants as directed by Plaintiff on the USM Form

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285s provided to him. All costs of that service will be advanced by the United States.

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U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

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7.

See

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

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serve upon each Defendant, or if an appearance has been entered by counsel, upon counsel,

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a copy of every further pleading, motion, or other document submitted for the Court's

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

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document he seeks to file with the Clerk of Court, a certificate stating the manner in which

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a true and correct copy of that document has been served on Defendants or on their counsel,

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and the date of that service.

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Court which has not been properly filed with the Clerk, or which lacks a corresponding

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Certificate of Service, may be disregarded.

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See S.D. Cal. Civ. L. R. 5.2. Any document received by the

IT IS SO ORDERED.

DATE: October 25, 2018

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th Bermudez Mo

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negro

United States Magistrate Judge

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