The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Currently pending before the court is 1) plaintiff's request to proceed upon a second amended complaint, filed on 6/24/08, along with a proposed second amended complaint, filed on 6/25/08, to which defendants filed their opposition, after which plaintiff filed a reply; 2) plaintiff's 7/11/08, motion for sanctions for defendants' failure to cooperate in discovery, opposed by defendants; thereafter, plaintiff filed an "addendum"; 3) plaintiff's request for issuance of a subpoena for production of documents for service upon Matthew Cate, Secretary of California Department of Corrections and Rehabilitation (CDCR), filed on 3/23/09; 4) plaintiff's motion to vacate the taking of his deposition, filed on 3/24/09.
The original complaint in this action was filed nearly three years ago, on 5/05/06, without either an in forma pauperis affidavit or the required filing fee. On 6/02/06, plaintiff paid a portion of the filing fee. By Order, filed on 6/23/06, plaintiff was directed to submit a declaration making the requisite showing to proceed in forma pauperis under 28 U.S.C. § 1915(a) or to pay the remainder of the full filing fee; plaintiff subsequently paid the filing fee in full. By Order, filed on 10/24/06, plaintiff's complaint was dismissed with leave to file an amended complaint; plaintiff was granted an extension of time to file an amended complaint. By Order, filed on 6/15/07, the court found plaintiff's claims in the amended complaint against defendants D.K. Butler; W. Parker; A. Groner; J. Mineau; T. Pebler; H. Carreon; C. Martincek colorable and directed plaintiff to complete service of process in accordance with Fed. R. Civ. P. 4, but afforded plaintiff one further opportunity therein to make the requisite showing for in forma pauperis status, so that the court might be able to direct the U.S. Marshal to serve the amended complaint, assuring plaintiff that he would not be assessed any further filing fee.
Plaintiff's request to pay for the services of the U.S. Marshal to be his process server was disregarded, and plaintiff's improperly submitted documents, including the summons and copies of his amended complaint were returned to plaintiff. Orders, filed on 7/30/07, and 7/31/07. By Order, filed on 8/14/07, plaintiff's 8/06/07 application to proceed in forma pauperis was denied based on the court's review of the amount of funds in his prison trust account; plaintiff's request for an extension of time to serve the defendants was granted.
On 12/13/07, defendants Pebler, Carreon, and Martincek, having been granted an extension of time to do so,*fn1 filed their answer to the first amended complaint. Plaintiff's request for an extension of time to serve the remaining defendants, Butler, Parker, Groner and Mineau was granted by Order filed on 12/18/07. Defendant Mineau filed an answer to the first amended complaint on 1/31/08.
In an Order, filed on 3/10/08, plaintiff was granted an additional 90 days to complete service of process upon defendants Butler, Parker and Groner, and was cautioned in that order that there would be no further extension of time.
By Order, filed on 5/20/08, noting to that date four of the seven named defendants had been served and that plaintiff's attorney in unrelated matters had informed the court that plaintiff pro se had been separated from his legal papers since 4/09/08, due to apparently having been placed in administrative segregation for his own protection and due to be transferred, the court directed defendants' counsel to assist in locating the unserved defendants. In that Order, the court further observed that, although having liberally granted plaintiff extensions of time to serve process cognizant of the hurdles faced by an incarcerated person seeking to serve his own summons and complaint, that, nevertheless, "there comes a point when delays become an untenable impediment to the judicial process." Order, filed on 5/20/08, p. 2. The court further asserted that any unserved defendants which defendants' counsel could not locate would be subject to dismissal pursuant to Fed. R. Civ. P. 4(m).
By Order, filed on 7/29/08 (docket # 48), noting that the court had been informed that plaintiff had previously sought the addresses of unserved defendants by way of discovery, that defendants' counsel, subsequent to the 5/20/08, Order had informed the court that CDCR representative D. Johnson at California State Prison - Folsom (FSP) had, at all relevant times, been authorized to accept service of process on defendant Butler's behalf, and that, moreover, defendants Parker and Groner, retired from CDCR, were willing to allow Folsom to accept service of process of this action on their behalf, as well. The order also noted the defendants' request that the U.S. Marshal be directed to serve the summons and complaint upon the three defendants in care of FSP's litigation coordinator, and the 6/19/08 declaration by plaintiff that his process server had contacted FSP but could not ascertain the location of the unserved defendants. In that order, as well, it was noted that plaintiff had filed a motion for leave to file a second amended complaint on 6/24/08, and a proposed second amended complaint on 6/25/08, and that, also on 6/25/08, defendants had requested a screening order. The court denied the request, directing defendants to respond substantively to the motion and proposed second amended complaint, either by opposition or statement of non-opposition.
In a separate Order, also filed on 7/29/08 (# 49), the court directed the U.S. Marshal to serve process on defendants Parker, Groner and Butler. Waivers of service of process were filed on behalf of these defendants on 9/15/08, and finally, on 9/24/08, defendants Parker, Groner and Butler filed their answer to the first amended complaint, nearly two and a half years after the inception of this action.
Plaintiff describes himself as 65 years old, serving a life term, and being of Iranian descent. At the time of the filing of this action and of the filing of the first amended complaint, plaintiff was housed at CSP-Folsom (FSP). As noted previously, the seven named defendants are D.K. Butler; W. Parker; A. Groner; J. Mineau; T. Pebler; H. Carreon; C. Martincek. Defendant Butler is the FSP warden; defendant Parker at the time was employed at Folsom, as was defendant Groner, who was employed as an electronic technician. Defendants also include J. Mineau, an FSP Correctional Sergeant; Pebler and Martincek, two FSP Correctional Officers; Martincek. Defendant Carreon is an FSP electrician shop supervisor. In other words, all defendants are or were employed by CDCR at FSP. First Amended Complaint, hereafter AC, pp. 2-3.
Plaintiff complains that the defendants were engaged in a conspiracy over a period of time to discriminate, harass and retaliate against plaintiff. Plaintiff begins by referencing an incident that apparently occurred while plaintiff was housed at Corcoran State Prison (CSP) from 1991-1995 before being transferred to FSP. While at CSP, plaintiff spent 4 years as the R&R clerk, where he "was known throughout Facility A as one of the more efficient inmate clerks." At that time, the program administrator there was defendant J. Mineau's brother. Plaintiff was lead clerk in R&R when defendant Mineau's brother asked plaintiff to be his personal clerk, but plaintiff told him that he was not interested in the position as Mineau's brother was known to mistreat his clerks, which remarks by plaintiff upset him, whereupon he told plaintiff that he would regret his refusal and his remark. As a result, plaintiff was later transferred to Facility B and became the Building 5 (or 4, plaintiff is unclear on this point) counselor's clerk, after which Mineau's brother caused plaintiff to lose that job. AC, pp. 3-5.
Following plaintiff's subsequent transfer to R.J. Donovan from 1995 until 1999, plaintiff was transferred to FSP; after meeting plaintiff, defendant Mineau, while R&R sergeant offered plaintiff a clerk job there, but plaintiff claimed that he had had a bad experience with his brother and that he "was probably just like his brother, so he was not interested in working for another Mineau." Defendant Mineau, infuriated, told plaintiff he would regret refusing the job and making the statement about him and his brother. Quarterly packages are processed in defendant Mineau's job location in R&R. Thereafter, plaintiff's daughter sent him a quarterly package containing items, including jewelry making items, which is not allowed in such packages, apparently since FSP did not have an active hobbyshop program at the time; thus, plaintiff planned to return them. When, after several months of waiting and checking with R&R staff without receiving the package, plaintiff asked his daughter to track the package, after which his daughter informed him that the package had been delivered more than a month previously. AC, pp. 5-6.
When plaintiff told R&R staff, including defendant Mineau, that their refusal to give him his package violated his rights and that he intended to file a grievance, in retaliation, on 12/14/02, defendant Mineau, failing to get authorization by the unit captain or lieutenant, personally searched plaintiff's cell for more than two hours, although it had been searched two weeks earlier per routine unit procedure, and even though the regular tier officer who conducts cell searches volunteered to do so. Mineau confiscated items without providing plaintiff a receipt per regulation and told plaintiff that if he wanted his quarterly package, he would have to bring a lieutenant with him. AC, pp. 6-7.
When plaintiff received a ducat, on 12/24/02, to retrieve his package from R&R, he was told they were closed; he was re-ducated for 12/27/02, and was again turned away.
Finally, on 12/28/02, plaintiff was able to see his package but saw that it had been opened outside his view and, not trusting Mineau because of the harassment and retaliation, told R&R staff he did not want to take responsibility for it and to return it to the sender, signing a trust withdrawal to pay for the return, despite R&R's staff efforts to have him accept the package. AC, p. 7.
Plaintiff claims that R&R staff again asked him to take the package on 12/29/02; defendant Mineau, on 12/30/02, told plaintiff to sign for the package and inventory its contents and only then could it be returned, but plaintiff explained he would not do so as the package had been opened without him and he could not be sure it had not been tampered with. Associate Warden Bunnell (not a defendant) told plaintiff, also on 12/30/02, that he would ask defendant Mineau to return the package to plaintiff's daughter; however, on both 12/31/02 and 1/02/03, he was again called to get his package from R&R. On 1/03/03, plaintiff explained to Mr. Bunnell that the problem had not resolved, whereupon plaintiff believes defendant ...