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Richard Alan Lawson v. Donald Youngblood

October 25, 2012

RICHARD ALAN LAWSON,
PLAINTIFF,
v.
DONALD YOUNGBLOOD, ET AL.,



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER GRANTING MOTION FOR CLARIFICATION

(ECF No. 49) ORDER STRIKING CORRECTION OF ADDRESS AND REQUIRING PLAINTIFF TO USE HIS ADDRESS OF INCARCERATION Defendants. (ECF No. 50)

I. PROCEDURAL HISTORY

Plaintiff Richard Alan Lawson is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed on June 8, 2009 pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (Consent to Jurisdiction, ECF No. 5.) Defendants Embrey, Laird and Sawaske declined Magistrate Judge jurisdiction. (Decline of Jurisdiction, ECF No. 32.)

This matter proceeds on Plaintiff's Second Amended Complaint for inadequate medical care under the Eighth Amendment against Defendants Laird, Chang, Sawaske, Embrey, and Clemente, and for excessive force under the Eighth Amendment against Defendant Laird. (Order on Cognizable Claims, ECF No. 22.) Defendants Laird, Sawaske and Embrey filed an Answer on August 1, 2012. (Answer, ECF No. 29).

On September 17, 2012, the United States Marshal returned the summons and USM-285 forms for Defendants Clemente and Chang, unexecuted. (Summons Return, ECF Nos. 38 & 42.) The Marshal attempted to secure a waiver of service and then attempted personal service, but was unsuccessful.

On October 22, 2012, Plaintiff filed a Motion for Clarification regarding Defendants served and represented. (Mot. Clarification., ECF No. 49.)

On October 22, 2012, Plaintiff filed a Correction of Current Address. (Correction of Address, ECF No. 50)

The Motion for Clarification and the Correction of Address are now before the Court.

II. ANALYSIS

A. Clarification of Defendants Served and Represented

Plaintiff seeks instruction as to unserved Defendants Clemente and Chang or alternatively an order that Kern County Counsel respond to this motion.

Subject to certain requirements set forth herein, Plaintiff is entitled to service of subpoena by the United States Marshal. 28 U.S.C. 1915(d). The Court and the Marshal have a statutory duty to serve process on Plaintiff's behalf. The response given to the Marshal to date by the Kern County Sheriff's Office is insufficient to allow the Court to discharge this duty on the ground that Defendants Clemente and Chang cannot be located. 28 U.S.C. 1915(d); Fed. R. Civ. P. 4(c)(3). The Court shall direct the Marshal to re-attempt service on Defendants Clemente and Chang by contacting Kern County Personnel Division and Kern County Sheriff's Office Human Resources Department requesting assistance in attempting to execute service.

The foregoing is clarification of the status of service and constitutes a grant of Plaintiff's Motion for ...


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