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Victoria Reyes v. Joseph Modesto; David Jakabosky; Michelle Davis-Tate; Richard Winters

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


January 26, 2012

VICTORIA REYES; JOSE REYES, JR., PLAINTIFFS,
v.
JOSEPH MODESTO; DAVID JAKABOSKY; MICHELLE DAVIS-TATE; RICHARD WINTERS; AND NANCY MEUER, DEFENDANTS.

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

FINDINGS AND RECOMMENDATIONS

Presently before the court is plaintiffs' motion to reopen this action, which is essentially a motion for relief from a final judgment, and accompanying, renewed application to proceed in forma pauperis (Dkt. Nos. 33-34).*fn1 Additionally, plaintiffs recently opened a separate action entitled Reyes v. West Sacramento Police, et al., No. 2:12-cv-00004 KJM KJN PS (E.D. Cal) ("Reyes II"), which is redundant of this action.*fn2 For the reasons stated below, the undersigned recommends that: (1) this action be re-opened and that plaintiffs be permitted to effectuate service of process through the United States Marshal's office or file a Second Amended Complaint; (2) plaintiffs' recently filed application to proceed in forma pauperis be denied as moot; and (3) the Clerk of Court be directed to administratively close the Reyes II case.

In November 2009, plaintiffs filed their complaint and application to proceed in forma pauperis. Because of plaintiffs' constantly changing addresses and apparent inability to follow the court's rules and orders, the court had significant trouble completing the screening and service process pursuant to 28 U.S.C. § 1915. The court was of the impression that plaintiffs were attempting to proceed in good faith, but with great difficulty.

Eventually, on September 22, 2010, the court ordered that plaintiffs' First Amended Complaint (Dkt. No. 14) be served on defendants via the U.S. Marshal's office (Order, Sept. 29, 2010, Dkt. No. 16). Between September 2010 and June 2011, however, plaintiffs had great difficulty complying with the court's service order and ultimately ceased communicating with the court about their whereabouts and intentions to prosecute this case; both plaintiffs appear to have been in and out of jail or prison, which has contributed to the tortured history of this case.

Plaintiffs ultimately failed to appear at a status conference on June 16, 2011 (Dkt. No. 29). The undersigned subsequently filed findings and recommendations that recommended the dismissal of this case without prejudice pursuant to Federal Rule of Civil Procedure 4(m) (Dkt. No. 30). Those findings and recommendations were adopted, this case was dismissed without prejudice, and judgment was entered on October 18, 2011 (Dkt. Nos. 31-32).

However, on December 9, 2011, plaintiff Victoria Reyes filed the pending motion to reopen this case. Ms. Reyes appears to argue that she was not served with any documents while she was in prison, including the order dismissing this case and the final judgment. The undersigned presumes that plaintiffs seek relief from the final judgment pursuant to Federal Rule of Civil Procedure 60(b). Although plaintiffs are solely responsible for their case being dismissed, having not kept the court informed of their addresses even while incarcerated, the undersigned recommends that this case be reopened pursuant to Rule 60(b)(1), which provides that a court may relieve a party from a final judgment for "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1). However, plaintiffs are once again reminded that it is their obligation to keep the court apprised of their current address and other contact information at all times.*fn3

If the district judge assigned to this matter adopts the recommendation that this case be reopened, the undersigned further recommends that plaintiffs be permitted to either attempt to effectuate service through the U.S. Marshal's office or file a Second Amended Complaint. The reason for provision of an option to amend the First Amended Complaint is that plaintiffs' newly filed action names an additional defendant, the "West Sacramento Police," and plaintiff may wish to amend their First Amended Complaint in this action to name the West Sacramento Police as a defendant. Of course, the undersigned would screen any Second Amended Complaint to determine whether service of that pleading would be proper under 28 U.S.C. § 1915(e).

Furthermore, the undersigned recommends that plaintiffs' application to proceed in forma pauperis filed on December 9, 2011, be denied as moot. Plaintiffs are already proceeding in forma pauperis and the filing of a subsequent application was unnecessary.

Finally, the undersigned recommends that the Clerk of Court be directed to administratively close the Reyes II case. Plaintiffs' claims in this case are redundant of their claims in Reyes II, and plaintiff will be afforded an opportunity to name the West Sacramento Police in this action. Accordingly, there is no justifiable basis to keep Reyes II open.

For the reasons stated above, IT IS HEREBY RECOMMENDED that:

1. Plaintiffs' motion to reopen this case (Dkt. No. 33) be granted and that this case be reopened.

2. Plaintiffs be given an option to either attempt to effectuate service of their First Amended Complaint through the U.S. Marshal's office or file a Second Amended Complaint, which would be subject to screening.

3. Plaintiff's application to proceed in forma pauperis (Dkt. No. 34) be denied as moot.

4. The Clerk of Court be directed to administratively close the action entitled Reyes v. West Sacramento Police, et al., No. 2:12-cv-00004 KJM KJN PS (E.D. Cal).

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d).

Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

IT IS SO RECOMMENDED.


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