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TOSCANO v. CAMBRA

United States District Court, Northern District of California


June 9, 2003

BENJAMIN TOSCANO, PLAINTIFF,
v.
STEVEN CAMBRA, JR.; ET AL., DEFENDANTS.

The opinion of the court was delivered by: Susan Illston, United States District Judge

JUDGMENT

Judgment is entered in favor of defendants and against plaintiff.

IT IS SO ORDERED AND ADJUDGED.

ORDER OF DISMISSAL

Plaintiff filed this prisoner civil rights action concerning two disciplinary proceedings against him at Pelican Bay State Prison in 1997. The court ordered service of process on several defendants. Several defendants moved to dismiss the complaint as untimely. The court granted the motion to dismiss in part, finding all the claims concerning the first disciplinary proceeding to be time-barred and the all the claims for declaratory and injunctive relief to be time-barred. See April 29, 2002 Order Granting In Part Motion To Dismiss. Defendant Schwartz then moved for summary judgment. The court granted summary judgment in defendant Schwartz's favor. See Feb. 20, 2003 Order Granting Summary Judgment For Defendant Schwartz.

When the court granted summary judgment for defendant Schwartz, it declined to enter judgment at that time because there remained three unserved defendants — Ham, Lopez, and Nakagawa — against whom plaintiff might have a viable claim. Plaintiff was ordered to provide current addresses for Ham, Lopez, and Nakagawa no later than May 30, 2003, and cautioned that the defendants would be dismissed if he did not do so or if the defendants could not be served it the addresses provided.

Plaintiff did not provide a current address for any of these three unserved defendants, and the deadline to do so has passed. Plaintiff filed an ex parte request for court order and extension of time in which he explained that he tried unsuccessfully to obtain the unserved defendants' addresses. Plaintiff asked the court to order the CDC to provide the information, but the CDC is not a party to this action and plaintiff did not provide any legal authority for ordering that non-party to provide the information. Plaintiff also asked for an extension of time but did not explain why any extension of time is appropriate: he tried and failed to obtain the addresses and did not identify any ongoing efforts to obtain those addresses such that the court ought to delay the dismissal of the action for the failure to serve the defendants.*fn1 The Request For Court Order & Extension Of Time is DENIED. (Docket #53.) Defendants Ham, Lopez, and Nakagawa are dismissed because they were not timely served with process, see Fed.R.Civ.P. 4(m), the deadline by which to do so has passed, and plaintiff has not shown good cause to further extend the deadline for the service of these defendants.

In light of the dismissal of the unserved defendants, and the court's earlier orders granting summary judgment for defendant Schwartz and the motion to dismiss for the defendants who appeared in this action, judgment will now be entered against plaintiff and in defendants' favor.

IT IS SO ORDERED.


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