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Utter v. Schwarzenegger

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 10, 2009

NICHOLAS W. UTTER, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET AL., DEFENDANTS.

ORDER

Plaintiff, a state prisoner, is proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983.

By an order filed November 7, 2008, the court found that plaintiff's complaint states a cognizable claim for relief against defendants Arnold Schwarzenegger and James Tilton, and ordered plaintiff to complete and return to the court, within thirty days, the USM-285 forms and copies of his complaint which are required to effect service on the defendants. On December 16, 2008, this court issued findings and recommendations recommending dismissal of the action due to plaintiff's apparent failure to comply with the November 7, 2008 order. Plaintiff filed objections to the findings and recommendations, and review of the record shows that on December 12, 2008, plaintiff submitted the copies of the summons, USM-285 forms and copies of the complaint but failed to provide the address for service of defendant Arnold Schwarzenegger. Good cause appearing, the findings and recommendations will be vacated.

On December 12, 2008, plaintiff filed four separate documents. Three are discovery requests and one is styled as a motion to supplement service on defendants with the three discovery requests. The latter document also includes a request to add Matthew Cate, the present director of the California Department of Corrections and Rehabilitation (CDCR), as a defendant. Plaintiff's request is not accompanied by a proposed amended complaint setting forth a claim against Director Cate, and it is not clear from the motion whether plaintiff seeks to substitute Director Cate in place of defendant Tilton, the former CDCR Director, or whether plaintiff seeks to add Director Cate as a defendant in this action. For these reason, plaintiff's request will to add Director Cate as a defendant will be denied without prejudice. Plaintiff's request for service of his discovery documents will also be denied. Plaintiff may serve discovery requests on defendants if and when they appear in this action.

In accordance with the above, IT IS HEREBY ORDERED that:

1. The December 16, 2008 findings and recommendations are vacated;

2. The Clerk of the Court is directed send the plaintiff one blank USM-285 form;

3. Within thirty days, plaintiff shall submit to the court the completed USM-285 form for defendant Schwarzenegger required to effect service. Failure to return the copies within the specified time period will result in a recommendation that this action be dismissed.;

4. Plaintiff's December 12, 2008 motion for leave to supplement service and add Matthew Cate as a defendant is denied; and

5. Plaintiff's December 12, 2008 interrogatories, set one, request for admissions set one, and request for production, set one will be placed in the court file and disregarded.

NOTICE OF SUBMISSION OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the court's order filed

completed USM-285 forms

DATED:

Plaintiff

20090310

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