UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
July 8, 2008
GREGORY A. FRANKLIN, CDCR #E-66269, PLAINTIFF,
L.E. SCRIBNER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER: (1) DENYING PLAINTIFF'S MOTION TO FILE SECOND AMENDED COMPLAINT AS MOOT [Doc. No. 77]; and (2) GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO SERVE DEFENDANTS GIURBINO, BOURLAND AND GREENWOOD [Doc. Nos. 79, 80]
I. Procedural History
On March 8, 2007, Gregory A. Franklin ("Plaintiff"), a state prisoner currently incarcerated at Calipatria State Prison, proceeding pro se and in forma pauperis ("IFP"), filed a Complaint pursuant to 28 U.S.C. § 1983. Defendants Ochoa, Trujillo, Haley, Nelson, Ortiz, Vargas, Scribner, Bell and Madden filed a Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b). Instead of filing an Opposition, Plaintiff sought and received leave of Court to file a First Amended Complaint. Plaintiff filed his First Amended Complaint ("FAC") on September 4, 2007. Defendants Bell, Haley, Madden, Ochoa, Ortiz, Nelson, Scribner, Trujillo, Vargas, Zill and Bass filed a second Motion to Dismiss Plaintiff's First Amended Complaint. This Court granted Defendants' Motion to Dismiss pursuant to FED. R.CIV.P. 12(b) and 12(b)(6). See March 5, 2008 Order Granting Defendants' Motion to Dismiss at 15. Plaintiff was granted sixty (60) days leave to file and serve a Second Amended Complaint on Defendants. Id.
At the same time, the Court ordered Plaintiff to show cause why the claims against Defendants Giurbino, Bourland and Greenwood should not be dismissed for want of prosecution pursuant to FED.R.CIV.P. 4(m). See March 5, 2008 Order requiring Plaintiff to show cause at 2. Subsequently, Plaintiff filed a "Motion to Amend First Amended Complaint" and a "Request for Extension of Time to File and Serve upon Defendant an Amended Complaint" [Doc. Nos. 77, 80].
II. Motion to Amend First Amended Complaint
On March 27, 2008, Plaintiff filed a "Motion to Amend First Amended Complaint" [Doc. No. 77]. However, this motion is unnecessary in light of the Court's March 5, 2008 Order permitting Plaintiff leave to file a Second Amended Complaint, In addition, the Court recently accepted for filing Plaintiff's Second Amended Complaint [Doc. No. 82]. Accordingly, the Court DENIES Plaintiff's Motion for leave to amend as moot.
III. Motion for Extension of Time to Serve Defendants
On April 23, 2008, Plaintiff filed a "Request for Extension of Time to File and Serve upon Defendant an Amended Complaint" in response to the Court's OSC. In this Motion, Plaintiff is seeking additional time to serve Defendants Bourland, Giurbino and Greenwood. As to Defendant Bourland, Plaintiff admits that he forgot to submit the required form to the U.S. Marshal ("USMS") and requests an extension of time so that he may complete service of the Second Amended Complaint on Defendant Bourland. See Pl.s' Reply to Order to Show Cause at 2. However, as to Defendants Giurbino and Greenwood, Plaintiff believes that he provided the USMSl with all the requested information but the USMS failed to properly serve these two Defendants. Id. at 1-2.
A review of the Court's docket indicates that the summons for both of the Defendants were returned unexecuted by the USMS's office because neither Defendant were currently employed at Calipatria State Prison. For Defendant Greenwood, the remarks made by the USMS's office indicated that they "rec'd notice from litigation coordinator that [Defendant Greenwood] is at Ironwood State Prison, return unexecuted." See Summons Returned Unexecuted by Gregory A. Franklin as to M Greenwood, Doc. No. 12. With respect to Defendant Giurbino, the remarks made by the USMS's office indicated that they "rec'd notice from Litigation Coordinator that [Defendant Giurbino] is at Sacramento Headquarters, returned unexecuted." See Summons Returned Unexecuted by Gregory A. Franklin as to G.J. Giurbino, Doc. No. 9. The USMS did not attach the written "notice" that they received by the Litigation Coordinator at Calipatria State Prison.
Accordingly, in light of Plaintiff's pro se status, the Court will GRANT Plaintiff's request for extension of time to effect service upon Defendants Bourland, Greenwood and Giurbino.
For all the reasons set forth above, IT IS HEREBY ORDERED that:
(1) Plaintiff's Motion to Amend First Amended Complaint is DENIED as moot; IT IS FURTHER ORDERED that:
(2) Plaintiff's Request for Extension of Time to File and Serve Upon Defendant an Amended Complaint [Doc. No. 80] is GRANTED pursuant to FED.R.CIV.P. 4(m). The Court will grant Plaintiff an additional sixty days from the date this Order is filed to complete service. Plaintiff shall complete, as accurately and clearly as possible, the USMS Form 285s provided to him, and shall return them to the USMS. The USMS is directed to expedite service upon receipt of the forms from Plaintiff.
(3) The Clerk of Court is Directed to provide Plaintiff with an "IFP Package" consisting of: (1) this Order; (2) three certified copies of his Second Amended Complaint [Doc. No. 82]; (3) a Summons; (4) blank USMS Form 285s for purposes of attempting service upon Defendants Greenwood, Giurbino and Bourland.
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