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Washington v. Brown

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


March 24, 2009

JESSE WASHINGTON, PLAINTIFF,
v.
J. BROWN, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. On January 21, 2009, the court granted plaintiff's motion for leave to file an amended complaint. Specifically, the court found that plaintiff's amended complaint appeared to state cognizable claims for relief against Chaplain Mohamed, previously referred to as John Doe in his original complaint, under the First Amendment and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The court also found that plaintiff's amended complaint appeared to state additional cognizable claims against defendants Kissinger and Brewer under RLUIPA. See 42 U.S.C. § 1983 & 28 U.S.C. § 1915A(b). The court ordered plaintiff to file the documents necessary to effect service on Chaplain Mohamed within thirty days. In addition, the court informed the parties that the court would issue a further scheduling order that permitted further discovery on plaintiff's claims against Chaplain Mohamed under the First Amendment and RLUIPA and plaintiff's claims against defendants Brewer and Kissinger under RLUIPA. The court also informed the parties that the court would allow them to file additional dispositive motions if necessitated by the amendment.

On February 29, 2009, plaintiff filed a request for assistance in locating Chaplain Mohamed. Plaintiff is advised that it is not the court's duty to locate the defendants in this action for him. However, the court notes that defense counsel submitted a declaration from Chaplain Mohamed in support of defendants' motion for summary judgment and likely knows his whereabouts. As discussed above, the court will re-open discovery in this matter for a brief period. During this time, plaintiff will be allowed to engage in discovery regarding Chaplain Mohamed's whereabouts. Plaintiff is cautioned, however, that when service of a complaint is not made upon a defendant within 120 days after the complaint was filed, the court may be required to dismiss the plaintiff's claims against that defendant. See Fed. R. Civ. P. 4(m). Accordingly, the court will deny plaintiff's request for court assistance with service of process, but will re-open discovery to allow plaintiff to engage in discovery regarding Chaplain Mohamed whereabouts. The court will also grant plaintiff an additional forty-five days to file the documents necessary to effect service on Chaplain Mohamed.

Under the court's July 3, 2008 scheduling order, plaintiff's pretrial statement was due on March 20, 2009, and defendants' pretrial statement was due on March 27, 2009. Pretrial conference was set for April 3, 2009, and jury trial was set for June 30, 2009. Neither party has filed a pretrial statement, nor would any pretrial statement be appropriate at this time given the posture of this case. Good cause appearing, the court will vacate the scheduling order dates related to pretrial statements, pretrial conference, and jury trial. The court will also, by this order, reset a schedule for this litigation that limits the scope of further discovery to plaintiff's claims against Chaplain Mohamed under the First Amendment and RLUIPA and plaintiff's claims against defendants Brewer and Kissinger under RLUIPA. The court will also allow the parties to file additional dispositive motions if necessitated by the amendment.

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

1. Plaintiff's February 9, 2009 request for court assistance (Doc. No 71) is denied;

2. The Clerk of the Court is directed to send plaintiff one summons, one USM-285 forms, an instruction sheet, and a copy of the amended complaint filed July 18, 2008;

3. Within forty-five days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit all of the following documents to the court at the same time:

a. The completed, signed Notice of Submission of Documents;

b. One completed summons;

c. One completed USM-285 form for defendant Mohamed; and

d. Two copies of the amended complaint filed July 18, 2008.

Failure to do so will result in a recommendation that defendant Mohamed be dismissed from this action. In the alternative, plaintiff may file a request to voluntarily dismiss defendant Mohamed from this action;

4. The court's July 3, 2008 scheduling order dates related to pretrial statements (March 20, 2009 and March 27, 2009), pretrial conference (April 3, 2009), and jury trial (June 30, 2009) are vacated;

5. The parties may conduct discovery until July 24, 2009. Any motions necessary to compel discovery shall be filed by that date. All requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34, or 36 shall be served no later than sixty days prior to that date. Discovery is limited to plaintiff's claims against Chaplain Mohamed under the First Amendment and RLUIPA and plaintiff's claims against defendants Brewer and Kissinger under RLUIPA;

6. Any dispositive motions necessitated by the amendment shall be filed on or before September 25, 2009 and shall be briefed in accordance with paragraph 7 of this court's order filed October 31, 2006;

7. Except as stated in this order, the remainder of the court's July 3, 2008 scheduling order remains in effect. The court will issue a revised scheduling order if necessary after ruling on any forthcoming dispositive motions or upon expiration of the time to file dispositive motions.

NOTICE OF SUBMISSION OF DOCUMENTS

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

one completed summons form;

one completed USM-285 form; and

two true and exact copies of the complaint filed July 18, 2008.

DATED: .

Plaintiff

20090324

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