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John Kent v. Stuart Rind; Rick Villucci; Diana Roach; Rick Lopez; Stephen Takimoto

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


December 29, 2011

JOHN KENT, PLAINTIFF,
v.
STUART RIND; RICK VILLUCCI; DIANA ROACH; RICK LOPEZ; STEPHEN TAKIMOTO; LESLIE YOAKUM; CARL VEGA; SUE STIREWALT; KEVIN KERR; JIM KLEIMAN; THOMAS EBLING; SUE PAYNE; ANDREA SOUZA; ANITA SISNEROS; JACQUELYN MAES; PATRICIA NELSON; AND UNKNOWN CSLB EMPLOYEES 1-15, DEFENDANTS.

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

ORDER

On November 30, 2011, plaintiff filed his Tenth Amended Complaint with leave of court (Dkt. No. 53).*fn1 Pursuant to the court's order granting plaintiff leave to amend, plaintiff's Tenth Amended Complaint may attempt to allege, at most, the following four claims that seek relief for: (1) a violation of the Tom Bane Civil Rights Act, Cal. Civ. Code § 52.1; (2) a violation of plaintiff's procedural due process rights pursuant to 42 U.S.C. § 1983; (3) intentional infliction of emotional distress; and (4) negligent infliction of emotional distress. (See Order, Sept. 26, 2011, Dkt. No. 47; see also Order, Sept. 29, 2011, Dkt. No. 48.)

On December 21, 2011, defendants Kevin A. Carr, Thomas Ebling, Jim Z. Kleiman, Rick Lopez, Patricia Nelson, Sue Payne, Diana Roach, Anita Sisneros, Sue Stirewalt, Stephen Takimoto, Carl Vega, Rick Villucci, and Leslie Yocum-Howell filed an answer to the Tenth Amended Complaint (Dkt. No. 54). However, defendants Jacquelyn Maes, Stuart Rind, and Andrea Souza have not yet been served with process or otherwise appeared in this action. (See Order to Show Cause and Findings and Recommendations, June 28, 2011, at 2 n.2, 21-22, Dkt. No. 42.)

By this order, the undersigned sets a status (pretrial scheduling) conference in this case. The parties who have appeared in the action shall file status reports (a joint status report if at all possible) at least 14 days in advance of the status (pretrial scheduling) conference. The status report or reports shall conform to the requirements of this court's Local Rule 240 and paragraph six of the court's previously entered Order Setting Status Conference, which was filed on July 22, 2010 (Dkt. No. 22). Plaintiff's failure to file a status report shall result in a recommendation that his action be dismissed pursuant to Federal Rule of Civil Procedure 41(b) and Local Rules 110 and 183(a).

Additionally, the undersigned orders service of the Tenth Amended Complaint on defendants Maes, Rind, and Souza. See 28 U.S.C. § 1915. Because plaintiff is proceeding in forma pauperis, such service shall be achieved through the U.S. Marshal, as set forth below.

In light of the foregoing, IT IS HEREBY ORDERED that: 1. A status (pretrial scheduling) conference shall be held before the undersigned on Thursday, February 2, 2012, at 10:00 a.m., in Courtroom 25. The parties who have thus far appeared in this action shall file status reports, or a joint status report if possible, on or before January 19, 2012.

2. Service of plaintiff's Tenth Amended Complaint is appropriate as to the following defendants: Jacquelyn Maes, Stuart Rind, and Andrea Souza.

3. The Clerk of the Court is directed to issue forthwith all process pursuant to Federal Rule of Civil Procedure 4.

4. The Clerk of Court shall send plaintiff three USM-285 forms, one summons, an endorsed copy of plaintiff's Tenth Amended Complaint (Dkt. No. 53), this court's scheduling order, and the forms providing notice of the magistrate judge's availability to exercise jurisdiction for all purposes.

5. Plaintiff is advised that to effectuate service, the U.S. Marshal will require:

a. One completed summons;

b. One completed USM-285 form for each defendant to be served;

c. A copy of the Tenth Amended Complaint for each defendant to be served, with an extra copy for the U.S. Marshal; and

d. A copy of this court's scheduling order and related documents for each defendant to be served.

6. Within 30 days from the entry of this order, plaintiff shall supply the United States Marshal with all information needed by the Marshal to effectuate service of process, and shall, within 14 days thereafter, file a statement with the court that such documents have been submitted to the United States Marshal.

7. The U.S. Marshal shall serve process, with copies of this court's scheduling order and related documents, within 90 days of receipt of the required information from plaintiff, without prepayment of costs. The United States Marshal shall, within 14 days thereafter, file a statement with the court that such documents have been served. If the U.S. Marshal is unable, for any reason, to effect service of process on any defendant, the Marshal shall promptly report that fact, and the reasons for it, to the undersigned.

8. The Clerk of Court shall serve a copy of this order on the United States Marshal, 501 "I" Street, Sacramento, CA 95814 (tel. 916-930-2030).

9. Plaintiff's failure to comply with this order shall result in a recommendation that this action be dismissed. See Fed. R. Civ. P. 41(b); E. Dist. Local Rules 110, 183(a).

IT IS SO ORDERED.


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