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Carlos Hendon v. T. Virga

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


May 19, 2011

CARLOS HENDON PLAINTIFF,
v.
T. VIRGA, ET AL. DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding without counsel and in forma pauperis, with an action under the Americans with Disabilities Act, 42 U.S.C. § 12132, and California tort law. On April 22, 2011, the magistrate ordered that service is appropriate on defendant Virga and instructed plaintiff to return the necessary service documents, which includes two copies of the complaint filed December 28, 2010. See Order at ¶ 5.d (Dkt. # 6, entered April 25, 2011). Plaintiff now moves for an order directing the Clerk of Court to complete service on the defendant even though plaintiff has not yet submitted the necessary documents. Plaintiff acknowledges that he has not complied with the court's order of April 22, explaining that he has attempted to produce two copies of the complaint as required, but prison staff allegedly denied his request to photocopy the complaint. He states he instead received a handwritten notation from prison staff that read, "This complaint has already been filed and recorded." Motion (Dkt. #9).

The court cannot order service without the necessary service documents, which only plaintiff can provide. Plaintiff must, therefore, seek further assistance from prison staff in making photocopies of the complaint so that plaintiff can comply with the magistrate's order of April 22, 2011 (Dkt. # 6). Although the court cannot grant the relief requested in the instant motion, plaintiff may, if necessary after additional but unsuccessful attempts to photocopy the complaint, request injunctive relief to enforce the court's order of April 22, 2011.*fn1

Accordingly, IT IS HEREBY ORDERED that the motion to effect service without the court-ordered documents (Dkt. # 9) is denied.


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