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Condalee Morris v. M Barr

August 31, 2011

CONDALEE MORRIS,
PLAINTIFF,
v.
M BARR, PROGRAM SERGEANT; ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Bernard G. Skomal United States Magistrate Judge

ORDER:

(1) GRANTING PLAINTIFF'S MOTION FOR DISCOVERY (Doc. No. 31);

(2) DENYING AS MOOT PLAINTIFF'S MOTION FOR DISCOVERY (Doc. No. 42);

(3) DENYING PLAINTIFF'S REQUEST FOR COPIES (Doc. No. 33);

(4) DENYING PLAINTIFF'S REQUESTS FOR PRETRIAL AND SETTING FOR TRIAL (Doc. Nos. 38 & 41); &

(5) DENYING PLAINTIFF'S MOTION TO APPOINT COUNSEL (Doc. No. 40)

On February 10, 2011, Plaintiff Condalee Morris, a state prisoner proceeding pro se and in forma pauperis ("IFP") in this civil rights action filed pursuant to 42 U.S.C. §1983, filed a first amended complaint. (Doc. No. 7.) On April 14, 2011, the Court granted Plaintiff's request to proceed in forma pauperis and directed the U.S. Marshall to effect service of the summons and first amended complaint upon the defendants pursuant to FED.R.CIV.P. 4(c)(3) and 28 U.S.C. § 1915(d). (Doc. No. 12.) On August 4, 2011, nunc pro tunc to July 22, 2011, Plaintiff filed a motion for discovery, seeking the address of Defendant Mace. (Doc. No. 31.) On August 4, 2011, nunc pro to July 25, 2011, Plaintiff filed a request for a copy of the complaint and docket text in this case. (Doc. No. 33.) On August 12, 2011, nunc pro tunc to July 29, 2011, Plaintiff filed a request for the Court to hold an Early Neutral Evaluation Conference, discovery conference, or status/case management conference. (Doc. No. 38.) On August 12, 2011, Plaintiff filed a motion to appoint counsel (Doc. No. 40), a motion for pretrial and setting for trial (Doc. No. 41), and a motion for discovery seeking the address of Defendant Mace (Doc. No. 42).

I. Motions for Discovery

On April 14, 2011, the Court issued an order directing the U.S. Marshal ("USMS") to effect service on the Defendants named in Plaintiff's First Amended Complaint ("FAC"). (Doc. No. 12.)

In cases involving a plaintiff proceeding IFP, a United States Marshal, upon order of the court, shall serve the summons and the complaint. FED.R.CIV.P. 4(c)(3); 28 U.S.C. § 1915(d). "'[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint and ... should not be penalized by having his action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties.'" Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). "So long as the prisoner has furnished the information necessary to identify the defendant, the marshal's failure to effect service is 'automatically good cause....'" Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)). However, where a pro se plaintiff fails to provide the USMS with accurate and sufficient information to effect service of the summons and complaint, the court's sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22; see also Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987) (noting that plaintiff "may not remain silent and do nothing to effectuate such service"; rather, "[a]t a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent defects of which [he] has knowledge").

Here, Plaintiff seeks assistance in serving Defendant Mace, medical staff at Calipatria. The summons as to Defendant Mace has been returned "unexecuted." (Doc. No. 16.) The return of summons unexecuted indicates that Defendant Mace is not employed at Calipatria. (Id.) Accordingly, as long as Defendant Mace's forwarding address can be easily ascertained by reference to the CDCR's personnel records, Plaintiff is entitled to rely on the USMS to effect service upon this Defendant on his behalf. See Puett, 912 F.2d at 275.

The Court grants Plaintiff's motion for discovery (Doc. No. 31) and hereby directs the USMS to contact either the Litigation Coordinator at the Calipatria State Prison or the CDCR's Legal Affairs Division, if necessary, and provide current addresses within the CDCR's records or possession, and to forward those addresses to the USMS in a confidential memorandum. The Court denies as moot Plaintiff's second motion for discovery (Doc. No. 42), as it seeks the same relief.

II. Request for Copies

Plaintiff requests a copy of the complaint in this case, as well as a copy of the docket because he was denied his request to transfer facilities with his legal materials. (Doc. No. 33.) Plaintiff filed a notice of change of address on July 25, 2011, indicating that he is now housed at Calipatria state prison. (Doc. No. 27.) The Court denies Plaintiff's request. On August 1, 2011, the Court directed the Clerk of Court to provide Plaintiff with a copy of the docket. (Doc. No. 28.) This post-dates his recent change of address to Calipatria, and therefore Plaintiff should have a copy of the docket. Additionally, the Court rejected Plaintiff's recent submission of a duplicate copy of the First ...


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