(PC) Arocha v. Sauceda et al, No. 2:2011cv02959 - Document 90 (E.D. Cal. 2013)
Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 12/13/13 vacating 83 FINDINGS AND RECOMMENDATIONS and denying 87 Motion for leave to file a supplemental complaint. The clerk of the court shall send plaintiff 1 USM-285 form and 1 summons to be completed and returned within 30 days. (Plummer, M)
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUDY AROCHA, 12 13 14 No. 2: 11-cv-2959 KJN P Plaintiff, v. ORDER E. SAUCEDA, et al., 15 Defendant. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On November 8, 2013, the undersigned recommended that defendants 19 Munoz and Montanez be dismissed. On December 6, 2013, plaintiff filed objections to the 20 findings and recommendations. For the following reasons, the findings and recommendations are 21 vacated. 22 On June 11, 2013, the court ordered service of defendants Munoz and Montanez. (ECF 23 No. 50.) Defendant Munoz, a former employee of Mule Creek State Prison (“MCSP”), was to be 24 served at California State Prison-Corcoran (“Corcoran”). Defendant Montanez was to be served 25 at MCSP. 26 On June 25, 2013, service as to defendants Munoz and Montanez was returned unexecuted 27 because they could not be located in the “CDCR” locator. (ECF No. 53.) On July 5, 2013, the 28 court granted plaintiff sixty days to provide additional information for service of these 1 1 defendants. (ECF No. 54.) 2 3 On August 29, 2013, plaintiff submitted new documents for service of defendant Munoz at Corcoran. In these documents, plaintiff identified defendant Munoz by a first initial, “C.” 4 On September 6, 2013, plaintiff filed a motion to compel requesting that defendants be 5 ordered to provide him with information regarding the location of defendants Munoz and 6 Montanez. (ECF No. 73.) In their opposition to this motion, defendants argued that the 7 information plaintiff sought did not exist, as demonstrated by a letter from the Mule Creek State 8 Prison (“MCSP”) Litigation Coordinator attached to plaintiff’s motion to compel. (ECF No. 77.) 9 This letter, dated August 8, 2013, states that MCSP does not have a record of either employee, 10 i.e., defendants Munoz and Montanez, who plaintiff is requesting information on. (ECF No. 73 at 11 20.) On October 22, 2013, the undersigned denied plaintiff’s motion to compel requesting that 12 13 defendants be ordered to provide him with information regarding the location of defendants 14 Munoz and Montanez. (ECF No. 80.) The undersigned found that defendants’ objection that the 15 information sought did not exist was well taken. (Id.) The returned USM-285 forms indicated 16 that there was no record that either defendant was currently employed by the California 17 Department of Corrections and Rehabilitation. (Id.) The letter from the MCSP Litigation 18 Coordinator indicated that there was no record of either defendants ever being employed at 19 MCSP. (Id.) 20 In his objections, plaintiff alleges that defendant C. Munoz is employed at Corcoran and 21 that he has seen him there. Plaintiff also identifies defendant Montanez by a first name, i.e., 22 Robert. 23 While there is information in the record indicating that neither defendant is employed by 24 CDCR, the court will order re-service of these defendants based on the new information provided 25 by plaintiff, i.e., a first initial and first name. By separate order, the court will direct the U.S. 26 Marshal to attempt service of defendant “C. Munoz” at Corcoran, using the forms submitted by 27 plaintiff in August 2013. Plaintiff will be directed to submit forms necessary for service of 28 defendant Robert Montanez herein. 2 1 On December 6, 2013, plaintiff filed a motion for leave to file a supplemental complaint 2 naming defendants Munoz and Montanez as doe defendants. This motion is denied as 3 unnecessary as the court is directing the U.S. Marshal to again attempt service of these 4 defendants. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. 7 2. Plaintiff’s December 6, 2013 motion for leave to file a supplemental complaint (ECF 8 9 10 11 The November 8, 2013 findings and recommendations (ECF No. 83 ) are vacated. No. 87) is denied. 3. The Clerk of the Court shall send plaintiff 1USM-285 form and one summons. 4. 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: 12 a. One completed summons; 13 b. One completed USM-285 form for defendant Robert Montanez; and 14 d. Two copies of the endorsed third amended complaint filed January 9, 2013. 15 5. Plaintiff need not attempt service on defendants and need not request waiver of service. 16 Upon receipt of the above-described documents, the court will direct the United States Marshal to 17 serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment 18 of costs. 19 Dated: December 13, 2013 20 21 ar2959.dis(2) 22 23 24 25 26 27 28 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUDY AROCHA, 12 13 14 No. 2: 11-cv-2959 KJN P Plaintiff, v. ORDER E. SAUCEDA, et al., 15 Defendant. 16 17 _1___ completed summons form 18 _1___ completed USM-285 forms 19 _2___ copies of the ___________________ Complaint 20 21 DATED: 22 _________________________________ 23 Plaintiff 24 25 26 27 28 4
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