UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 27, 2011
J. STOCKBRIDGE, ET AL.,
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR ORDER DIRECTING USM TO REv. SERVE DEFENDANTS FRANCO, DAVIS, AND CARLOS
Plaintiff Michael Contreraz, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 14, 2006. Pursuant to the Court's order of May 8, 2009, this action is proceeding on Plaintiff's amended complaint, filed October 21, 2008, against Defendants Stockbridge, Rodriguez, Franco, Davis, and Carlos for violation of the Eighth Amendment. Only Defendants Stockbridge and Rodriguez were located for service, and they appeared in the action on August 17, 2009. On February 3, 2011, Plaintiff filed a motion seeking an order directing the United States Marshal to initiate re-service on Defendants Franco, Davis, and Carlos.
Pending before the Honorable Lawrence J. O'Neill is a recommendation that Defendants Stockbridge and Rodriguez's motion to dismiss be granted. If the recommendation is adopted in full, this action will be dismissed for failure to exhaust and in light of the nature of Plaintiff's claim, the dismissal will be as to all five named defendants. If the motion is not granted, the Court will determine the next step regarding service of process on Defendants Franco, Davis, and Carlos and it will issue the appropriate orders at that time. Plaintiff will be notified if any further response or information is needed from him.
Plaintiff's motion for re-service is premature at this juncture and it may be rendered moot altogether by resolution of Defendants Stockbridge and Rodriguez's motion to dismiss. Therefore, Plaintiff's motion for re-service on Defendants Franco, Davis, and Carlos by the United States Marshal is DENIED.
IT IS SO ORDERED.
© 1992-2011 VersusLaw Inc.