Myron, et al v. Terhune, et al, No. 5:1999cv21265 - Document 184 (N.D. Cal. 2008)

Court Description: ORDER DENYING MOTIONS TO COMPEL DISCOVERY; DIRECTING PLAINTIFF TO EFFECTUATE SERVICE UPON DEFENDANTS; The CLERK SHALL REISSUE SUMMONS as to defendants Alfonso K. Fillion, P. Hamilton, R. Peralez, B. White, John H. Burke, C. Pickering, Rit a Clayton, J. Thompson, C. Moreno, V. Barron, E. Donnelly, and M.S. Madison Plaintiff MUST provide the Court with the address of defendants Shipman, Mandeville and Basso within 20 days from the date of this order. Plaintiff MUST pro vide the first name or initial and addresses of defendants Duck, Smith, Tann, Rings, Hill, Davis, Kilpatrick, Puig, Dr. Davis, Dr. Kuenzi, Dr. Parkinson, and Dr. Wittenberg within 20 days from the date of this order; GRANTING EXTENSION OF TIME TO FIL E OPPOSITION re 149 Motion for Order of restraint and disclosure, 150 MOTION Disclosure, Subpoenas and Service of Defendants, 164 MOTION for an order MOTION for Sanctions, 162 MOTION for Return of Property MOTION for Sanctions, 147 MOTION o rder to limit defense, 172 MOTION to Compel, 181 MOTION to Compel, 152 MOTION for court documents in order to amend complaint, 159 MOTION to Enforce Judgment, 175 MOTION to Compel, 149 MOTION for Disclosure, 183 MOTION for court action, 170 MOTION for relief from court orders.(ecg, COURT STAFF) (Filed on 11/12/2008) Modified text on 11/12/2008 (cv, COURT STAFF.)
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Myron, et al v. Terhune, et al Doc. 184 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 JAMES MYRON, 12 Plaintiff, 13 vs. 14 15 16 CAL TERHUNE, et al., Defendants. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) No. C 99-21265-JW (PR) ORDER DENYING MOTIONS TO COMPEL DISCOVERY; DIRECTING PLAINTIFF TO EFFECTUATE SERVICE UPON DEFENDANTS; DIRECTING CLERK TO REISSUE SUMMONS; GRANTING EXTENSION OF TIME TO FILE OPPOSITION; (Docket Nos. 147, 149, 150, 152, 159, 162, 164, 170, 172, 175, 181 & 183) 18 19 Plaintiff has filed several motions pertaining to discovery in this action filed 20 pursuant to 42 U.S.C. § 1983, including the following: “motion to limit defense 21 counsel’s physical inspection of plaintiff’s personal and unrelated legal material,” 22 (Docket No. 147); “motion for order of restraint and disclosure,” (Docket No. 149); 23 “motion for disclosure, subpoena and service,” (Docket No. 150); “motion for court 24 documents,” (Docket No. 152); “motion for enforcement,” (Docket No. 159); 25 “emergency motion for return of legal property and sanctions,” (Docket No. 162); 26 “emergency motion for order and sanctions,” (Docket No. 164); “emergency motion 27 for immediate relief,” (Docket No. 170); motions “to compel discovery,” (Docket 28 Nos. 172, 175 and 181); and a “motion for court action” (Docket No. 183). Order Addressing Pending Motions P:\PRO-SE\SJ.JW\CR.99\Myron265_motions2.wpd 1 Dockets.Justia.com DISCUSSION 1 2 A. Motions Regarding Discovery 3 Plaintiff is reminded that discovery is generally undertaken between the parties 4 without court intervention, under Rules 26-37 of the Federal Rules of Civil Procedure. 5 Discovery matters are to be served on the parties, but not filed with the Court, except 6 as provided by court order or under Rule 37. See Fed. R. Civ. P. 5(a); 37. To the 7 extent that Plaintiff’s motions seek to compel discovery, the motions are DENIED 8 without prejudice for failure to comply with the meet-and-confer requirement of 9 Federal Rule of Civil Procedure 37(a) and Local Rule 37-1. See Fed. R. Civ. P. 37(a) 10 (motion to compel must include a certification that the movant has in good faith 11 conferred or attempted to confer with the party not making the disclosure in an effort 12 to secure the disclosure without court action); N.D. Cal. Local Rule 37-1 (same). 13 Before attempting to compel discovery, plaintiff must first seek the information 14 through discovery under Rule 26. Plaintiff has provided no certification that he has 15 attempted to do so. 16 On July 9, 2008, the Court partially granted plaintiff’s prior motion for 17 documents such that the Attorney General, who as counsel to defendants in this 18 action, was ordered to supply plaintiff with a copy of his most recent complaint in this 19 matter and exhibits thereto. (See Docket No. 146.) The Attorney General is directed 20 to immediately comply with that order if he has not already done so. In the same 21 order, Iron State Prison (“ISP”) officials were ordered to produce all responsive and 22 non-privileged documents in plaintiff’s prisoner files that relate to the claims in this 23 pending action in accordance with the Director’s Level Appeal Decision, (Pl.’s Mot. 24 Ex. E), and to restore to plaintiff any legal material that can be located as it relates to 25 this action. ISP officials are directed to immediately comply with the Court’s July 9, 26 2008 order if they have not already done so. 27 28 Defendants are reminded that they must comply in good faith and in a timely manner to plaintiff’s requests for discovery in accordance with Rules 26-36 of the Order Addressing Pending Motions P:\PRO-SE\SJ.JW\CR.99\Myron265_motions2.wpd 2 1 Federal Rules of Civil Procedure. Plaintiff’s motion for court action (Docket No. 183) is DENIED as moot by the 2 3 instant court order. 4 B. Unserved Defendants 5 Plaintiff requests that the U.S. Marshal attempt service again on the unserved 6 defendants in this case. (Docket No. 150.) The unserved defendants are Alfonso K. 7 Fillion, P. Hamilton, J. Basso, P. Mandeville, S. Shipman, R. Peralez, B. White, John 8 H. Burke, C. Picerking, Duck, Rita Clayton, J. Thompson, Smith, C. Moreno, Tann, 9 V. Barron, Rings, Hill, Davis, Kilpatrick, E. Donnelly, Puig, Dr. Davis, M.S. 10 Madison, Dr. Kuenzi, Dr. Parkinson, and Dr. Wittenberg. The request is partially 11 granted as stated below. 12 1. Unlocated Defendants 13 It is plaintiff’s responsibility to provide accurate addresses for defendants so 14 they can be served by the United States Marshal. Defendants Shipman, Mandeville, 15 and Basso are not where plaintiff said they are as all three defendants are no longer at 16 the facility or unable to be located. (See Docket Nos. 132, 133 and 135.) Federal 17 Rule of Civil Procedure 4(m) contemplates that service of process normally will be 18 accomplished within four months of the filing of the complaint. Although the Court 19 can have the Marshal serve process on a defendant, it is Plaintiff’s responsibility to 20 provide the address for each defendant to be served. Plaintiff must provide the Court 21 with the addresses of these three defendants in a pleading no later than twenty (20) 22 days from the date of this order, in order for the Court to provide the United States 23 Marshal with sufficient information for service to be effected under Fed. R. Civ. P. 24 4(c)(2). See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). Alternatively, 25 plaintiff himself may effect service and file proof of service of summons no later than 26 twenty (20) days from the date of this order. Failure to either provide address 27 information or effect service may result in dismissal of the complaint against these 28 defendants under Rule 4(m). Order Addressing Pending Motions P:\PRO-SE\SJ.JW\CR.99\Myron265_motions2.wpd 3 1 2. 2 Plaintiff has named defendants for whom a first name or initial is lacking: More Information Needed 3 Duck, Smith, Tann, Rings, Hill, Davis, Kilpatrick, Puig, Dr. Davis, Dr. Kuenzi, Dr. 4 Parkinson, and Dr. Wittenberg. Plaintiff must provide the first name or initial and the 5 address of these defendants to the Court in a pleading within twenty (20) days from the date 6 of this order in order for the Court to provide the United States Marshal with sufficient 7 information for service to be effected under Fed. R. Civ. P. 4(c)(2). See Walker v. Sumner, 8 14 F.3d 1415, 1422 (9th Cir. 1994). Failure to do so may result in dismissal of the complaint 9 against these defendants. 10 3. Summonses Not Yet Returned 11 The summonses as to defendants Alfonso K. Fillion, P. Hamilton, R. Peralez, 12 B. White, John H. Burke, C. Pickering, Rita Clayton, J. Thompson, C. Moreno, V. 13 Barron, E. Donnelly, and M.S. Madison have not yet been returned either executed or 14 unexecuted. It appears that these defendants have not been served. The clerk of the Court 15 shall reissue summons and the United States Marshal shall serve, without prepayment 16 of fees the following upon these defendants at Salinas Valley State Prison: (a) copies 17 of the complaint in this matter, (b) all attachments thereto, (c) copies of the March 20, 18 2008 order, (d) copies of the Order issued on February 25, 2000, and (e) a copy of this 19 order. 20 C. Extension of Time to File Opposition Defendants have filed a motion to dismiss (Docket No. 167) to which plaintiff 21 22 has not filed an opposition although the deadlines has passed. According to the 23 pleadings filed in this matter, plaintiff claims limited access to the library and problem 24 conducting discovery. Although discovery is not necessary to filing an opposition to 25 defendants’ motion to dismiss, the Court will grant plaintiff an extension of time to do 26 so. Plaintiff’s opposition must be filed no later than December 11, 2008. 27 Defendants shall file a reply within fifteen (15) days after the opposition is filed. 28 /// Order Addressing Pending Motions P:\PRO-SE\SJ.JW\CR.99\Myron265_motions2.wpd 4 CONCLUSION 1 2 3 4 5 The Clerk of the Court shall reissue summons and the United States Marshal shall serve defendants in accordance with the above. This order terminates Docket Nos. 147, 149, 150, 152, 159, 162, 164, 170, 172, 175, 181 and 183. 6 7 DATED: November 10, 2008 JAMES WARE United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Addressing Pending Motions P:\PRO-SE\SJ.JW\CR.99\Myron265_motions2.wpd 5 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JAMES MYRON, Case Number: CV99-21265 JW Plaintiff, CERTIFICATE OF SERVICE v. CAL TERHUNE et al., Defendants. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 11/12/2008 That on , I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. James Myron K-80153 CSP-Ironwood Ironwood State Prison P O Box 2199 Blythe, CA 92226-2199 Dated: 11/12/2008 /s/ Richard W. Wieking, Clerk By: Elizabeth Garcia, Deputy Clerk