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Velasquez v. Barrios

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 29, 2008

DAVID VELASQUEZ, PLAINTIFF,
v.
A. BARRIOS; C. GRAY; C. ROBERTSON; M. [DOC. NO. 46] LEVIN; F. PASCUA; R. TORREZ; GONZALES; FLINT, S. THOMAS; C. HALL; N. GRANNIS; L.E. SCRIBNER, DEFENDANTS.

The opinion of the court was delivered by: Cathy Ann Bencivengo United States Magistrate Judge

ORDER DENYING MOTION TO COMPEL WITHOUT PREJUDICE

Plaintiff David Velasquez ("Plaintiff"), a state prisoner proceeding pro se, filed this action under 42 U.S.C. § 1983. On October 16, 2007, Plaintiff filed a First Amended Complaint against defendants Pascua, R. Torrez, Gonzales, Flint, S. Thomas, C. Hall, N.Grannis, L.E. Scribner, A. Barrios, C. Gray, C. Robertson, and M. Levin. [Doc. No. 9.] The First Amended Complaint was successfully served on all defendants except Flint and Gonzales. [See Doc. Nos. 12, 13, 16, 17, 31, 32.] On December 28, 2007, Defendants F. Pascua, R. Torrez, S. Thomas, C. Hall, N. Grannis, L.E. Scribner, A. Barrios, C. Gray, C. Robertson, and M. Levin ("Defendants") filed a motion to dismiss the First Amended Complaint. [Doc. No. 32.]

On January 22, 2008, Plaintiff filed a motion to amend the summons on the First Amended Complaint to reflect the first initials of the unserved defendants, in order to then be able to obtain service as to those defendants. [Doc. No. 37.] Plaintiff also filed a letter (deemed a motion) requesting an extension of time to file his opposition to the Defendants' motion to dismiss. [Doc No. 35.] On January 28, 2008, the Court granted Plaintiff's motions. [Doc. No. 40.] In doing so, the Court ordered as follows:

1. DIRECTS the Clerk to amend the Summons on the First Amended Complaint as follows: Change "Flint" to "F.B. Flint or Frank B. Flint" and "Gonzales" to "J. Gonzalez or Juan Gonzalez";

2. DIRECTS the Clerk to provide Plaintiff with an additional "IFP Package" consisting of: (1) two certified copies of this Order; (2) two certified copies of the Court's order of August 28, 2007, granting IFP [Doc. No. 4]; (3) four of the amended Summons on the First Amended Complaint (see No. 1 above); (4) four certified copies of the First Amended Complaint [Doc. No. 9]; and (5) two blank USM Forms 285s for purposes of re-attempting service as to Defendants F.B. Flint/Frank B. Flint and J. Gonzalez/Juan Gonzalez;

3. ORDERS Plaintiff to complete, as accurately and clearly as possible, the new USM Marshal Form 285s provided to him with regard to defendants F.B. Flint/Frank B. Flint and J. Gonzalez/Juan Gonzalez, and return them, along with a certified copy of this order, a certified copy of the Court's order of August 28, 2007 [Doc. No. 4], three of the amended Summons on the First Amended Complaint and three certified copies of the First Amended Complaint (one for each defendant, one for the U.S. Marshal's Service files) to the U.S. Marshal no later than February 15, 2008.

4. FURTHER ORDERS that pursuant to FED.R.CIV.P. 4(c)(2), (m) and 28 U.S.C. § 1915(d), the U.S. Marshall shall, within 10 days of receiving Plaintiff's updated USM Form 285s, effect service of Plaintiff's First Amended Complaint and amended summons on the First Amended Complaint upon Defendants F.B. Flint/Frank B. Flint and J. Gonzalez/Juan Gonzalez as directed by Plaintiff. All costs of service shall be advanced by the United States pursuant to the Court's order of August 28, 2007, granting Plaintiff leave to proceed IFP and directing service pursuant to 28 U.S.C. §1915(d) and FED.R.CIV.P. 4(c)(2) [Doc. No. 4].

5. FURTHER ORDERS that the Defendants' motion to dismiss [Doc. No. 32] shall be continued to March 24, 2008, at 9:00 a.m., in Department E (no oral argument). Plaintiff's opposition to the motion shall be filed no later than March 10, 2008. Defendants' reply to Plaintiff's opposition shall be filed no later than March 17, 2008. [Doc. No. 40 at 4-5.]

The Amended Summons was issued on January 28, 2008. [Doc. No. 41.] Plaintiff was also sent an additional IFP package. [Doc. No. 40.] Plaintiff has now filed a "motion to compel." [Doc. No. 46.]

For the reasons set forth below, Plaintiff's motion to compel is DENIED WITHOUT PREJUDICE.

In the motion to compel, Plaintiff claims that he continues to be unsuccessful in serving the two remaining defendants (Gonzalez and Flint). [Doc. No. 46.] There is no indication on the docket, however, that Plaintiff has tried to serve the amended summons (with the new Form 285s) on Gonzalez and Flint. Plaintiff should fulfill his obligations under this Court's previous order. Plaintiff shall have until March 14, 2008, to fill out the new Form 285s with the amended summons and provide them (along with the other documents specified) to the U.S. Marshall as set forth in this Court's order of dated January 25, 2008, Document No. 40, page 4, paragraph 3. If those Form 285s come back from the U.S. Marshall indicating a continued inability to serve Gonzalez and Flint, then Plaintiff may renew this motion.

In the meantime, the motion to dismiss as to the defendants that have been served [Doc. No. 32] will go forward as previously scheduled on March 24, 2008, at 9:00 a.m. (no oral argument). On February 21, 2008, Plaintiff filed an opposition to that motion. [Doc. No. 48.] Once a reply is filed by defendants (due on or before March 17, 2008), the motion to dismiss will be considered fully briefed and will be taken under submission by the court.

IT IS SO ORDERED.

20080229

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