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Rosenblum v. Ellis

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


October 29, 2010

PHILLIP JON ROSENBLUM, PLAINTIFF,
v.
C/O ELLIS, DEFENDANT.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DIRECTING U.S. MARSHAL TO RETURN SERVICE RETURN OF SERVICE DUE IN SIXTY DAYS

Plaintiff is a state prisoner proceeding pro se in this civil rights action. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

I. Procedural History

On July 31, 2008, an order was entered, finding that the complaint stated a claim against Defendant Ellis, but failed to state any claims against any of the other named defendants. Plaintiff was granted leave to file an amended complaint to correct the deficiencies that the order identified. Despite an extension of time, Plaintiff did not file an amended complaint. On September 22, 2008, Plaintiff filed a notice and request to proceed on the claims found to be cognizable. Plaintiff specifically indicated that he "wishes to proceed only the claims identified by the court, as being unto C.O. Ellis." The Court recommended dismissal of the remaining claims and defendants. Plaintiff objected, and the Court granted Plaintiff further leave to amend.

On July 10, 2010, Plaintiff filed a first amended complaint. The Court again recommended that this action proceed against Defendant Ellis only, and the remaining claims and defendants be dismissed. On October 28, 2010, the District Court entered an order, adopting the findings and recommendations of the Magistrate Judge, dismissing the remaining claims and defendants. This action therefore proceeds against Defendant Ellis on Plaintiff's failure to protect claim.

II. Service

Service was initially ordered upon Defendant Ellis in 2009. On March 5,2009, an order was entered, directing service of the operative pleading upon Defendant C/O Ellis. On April 29, 2009, the USM 285 form for service upon C/O Ellis was returned as unexecuted. The form indicated that there are "several ellis" in the database. On June 17, 2009, an order was entered, advising Plaintiff that he must provide the Court with further information to assist the Marshal in serving C/O Ellis. On June 30, 2009, Plaintiff filed a document titled as "Notice/Information Provided to Assist With Service of Defendant by Phillip Jon Rosenblum." This notice contains information regarding where C/O Ellis was employed.

Accordingly, IT IS HEREBY ORDERED that:

1. The Clerk's Office shall forward to the U.S. Marshal Plaintiff's June 30, 2009, notice along with a copy of the USM 285 form submitted by Plaintiff on March 3, 2009.

2. The U.S. Marshal is directed to return to the Court, within sixty days, a return of service regarding C/O Ellis.

IT IS SO ORDERED.

20101029

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