O'Leary v. California Department of Corrections et al
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/20/11 ordering the motion to amend 35 is denied. The clerk of the court shall send plaintiff 1 USM-285 form, 1 summons, instruction sheet and a copy of the amended complaint to be completed and returned within 30 days. The motions for court assistance and to compel CDCR's assistance 36 and 38 are moot. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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GARY FRANCIS O’LEARY,
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Plaintiff,
No. CIV S-09-2601 CKD P
vs.
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CLARK,
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Defendant.
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ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action under 42
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U.S.C. § 1983. He has filed a motion to amend his second amended complaint, seeking to add
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several defendants that he was “unable to [add] due to a lock down.” Mot. at 1. Plaintiff
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previously named the same defendants in his second amended complaint. The court screened out
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all of those defendants under 28 U.S.C. § 1915A and found that the second amended complaint
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adequately stated a claim only against defendant Clark. See Order, Docket No. 25. The court
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gave plaintiff the option of attempting to state claims against the other defendants in a third
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amended complaint or simply resting on the second amended complaint and proceeding solely
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against defendant Clark. Id. Plaintiff chose the latter; therefore he is foreclosed from filing yet
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another amended complaint to add the defendants that this court has already screened out,
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particularly when his motion to amend shows no good cause to reverse plaintiff’s own decision
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to proceed without them in this case.
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Plaintiff has also filed two motions for the court’s assistance in locating defendant
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Clark for service. The U.S. Marshal’s office filed an unexecuted summons with a notation that it
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was unable to locate Clark either at the correctional facility where she allegedly violated
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plaintiff’s civil rights or in the database of the California Department of Corrections and
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Rehabilitation (CDCR). See Docket No. 30. The court notes that the unexecuted summons,
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which plaintiff provided, names only “Ms. Clark, RN” for service, while his motions for the
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court’s assistance seek help in locating “Susan Clark, RN.” It is possible that providing the
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defendant’s full name will assist the U.S. Marshal in locating her for service. Therefore the court
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will allow plaintiff a second opportunity to submit the necessary service documents with the
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defendant’s full name.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The motion to amend (Docket No. 35) is denied.
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2. The Clerk of the Court shall send plaintiff one USM-285 form, one summons,
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an instruction sheet and a copy of the amended complaint filed.
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3. Within thirty days from the date of this order, plaintiff shall complete the
attached Notice of Submission of Documents and submit the following documents to the court:
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a. The completed Notice of Submission of Documents;
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b. One completed summons;
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c. One completed USM-285 form for each defendant listed in number 1
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above; and
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d. Two copies of the second amended complaint filed June 15, 2010.
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4. Plaintiff need not attempt service on defendants and need not request waiver
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of service. Upon receipt of the above-described documents, the court will direct the United
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States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure
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4 without payment of costs.
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////
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5. The motions for court assistance and to compel CDCR’s assistance (Docket
Nos. 36 and 38) are moot.
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Dated: November 20, 2011
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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olea2601.ord
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