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Malik Jones v. J.L. Bishop

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 16, 2010

MALIK JONES,
PLAINTIFF,
v.
J.L. BISHOP, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Justin L. Quackenbush Senior United States District Judge

ORDER RE: MOTIONS AND SUBSTITUTION OF SECRETARY OF CDCR

The following Order addresses several outstanding issues.

1. Defendant Stailey's Motion

The court's November 5, 2010 Order dismissed Plaintiff's claims against Defendant Stailey and considered Defendant Stailey a moving defendant. Ct. Rec. 62. The court herein supplements the November 5, 2010 Order to reflect that Defendant Stailey's Motion to Join in the Motion to Dismiss (Ct. Rec. 61) filed November 2, 2010 is GRANTED.

2. Substitution of Secretary of the CDCR, Matthew Cate

The court previously ordered Plaintiff to file a Notice of Substitution and the completed service forms for the Secretary of the CDCR on or before November 30, 2010. On November 16, 2010, Plaintiff advised the court that he intended to substitute Secretary of the CDCR Matthew Cate for the "Director of Corrections" but that he did not have the necessary service documents to supply. Ct. Rec. 64. The court and the parties shall construe this document (Ct. Rec. 64) as Plaintiff's Notice of Substitution of the Secretary of the CDCR, Matthew Cate, in lieu of Defendant "Director of Corrections."

The Clerk shall immediately send Plaintiff a USM-285 form for Defendant Cate to be served, as well as a summons, instruction sheet, and a copy of the First Amended Complaint (Ct. Rec. 15). Upon receipt, Plantiff shall submit the attached Notice of Submission of Documents and submit the following documents to the Court:

a. The completed Notice of Submission of Documents;

b. A completed summons for Defendant Cate;

c. A completed USM-285 form for Defendant Cate;

d. A copy of this Order for Defendant Cate; and

e. 1 copy of the Amended Complaint (Ct. Rec. 15.

Plaintiff need not attempt service on Defendant Cate and need not request waiver of service. After receiving the above-described documents, the court will issue a separate Order requiring the U.S. Marshals to serve Cate.

3. Defendant David

Plaintiff's "Response Re: Court's Order of 9-16-2010" requests the court reconsider the court's dismissal of Plaintiffs' claims against Defendant David, who is no longer employed by the CDCR and is believed to be a civilian physician's assistant under contract with the U.S. Army stationed in Iraq. The court dismissed the claims without prejudice pursuant to Fed.R.Civ.P. 12(b)(2) and (5), for lack of personal jurisdiction and insufficiency of service of process. Ct. Rec. 48. Plaintiff requests the court exercise its "inherent power to extradite Defendant David back to the U.S." The court has no such authority, and it is Plaintiff's duty to assure service of process. Fed. R.Civ.P. 4(c). It has been nearly two years since Plaintiff initiated this litigation.

Accordingly, the court denies Plaintiff's request to reconsider the dismissal of claims against Defendant David.

The Clerk is hereby directed to enter this Order and furnish copies to Plaintiff and counsel.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

MALIK JONES, Plaintiff, v. J.L. BISHOP, et al., Defendants.

NO. CV-09-0150-JLQ

NOTICE OF SUBMISSION OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the Court's "Order Requiring Plaintiff to Amend or Submit Documents for Service.":

______ completed summons form; ______ completed USM-285 form(s); ______ copies of the Amended Complaint (Ct. Rec. 15); and ______ copies of the Court's "ORDER RE: MOTIONS AND SUBSTITUTION OF SECRETARY OF CDCR."

DATED:

Plaintiff

20101216

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