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Torbert v. County of San Diego

United States District Court, Ninth Circuit

June 28, 2013

JAVON LAMAR TORBERT, CDCR #P-96193 Plaintiff,
v.
COUNTY OF SAN DIEGO; MADSEN; STORTON, BLACK; MIDECKE; OGSBERT; JOHN DOES, Defendants.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: DISMISSAL WITHOUT PREJUDICE OF DEFENDANT KEAYS UNDER RULE 4(m) OF THE FEDERAL RULES OF CIVIL PROCEDURE

WILLIAM McCURINE, Jr., Magistrate Judge.

I. INTRODUCTION

Javon Lamar Torbert ("Plaintiff"), a state prisoner currently incarcerated and proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983 on December 19, 2011. All defendants in this action have appeared except for Dr. Christie Keays. A process receipt for Dr. Christie Keays ("Defendant") was returned unexecuted on May 23, 2013 with no forwarding information available. [ECF No. 161.] During a telephonic status conference on the issue of service on June 7, 2013, Plaintiff pro se was advised by the Court that Defendant Keays was subject to sua sponte dismissal without prejudice from this action. See Fed.R.Civ.P. 4(m). [ECF No. 162.]

II. FACTUAL BACKGROUND

Plaintiff alleges excessive force was used against him as a detainee in San Diego Central Jail on June 20, 2009, when the Defendant Sheriffs shot pepper balls at Plaintiff through a small opening in his cell door and one ball struck him in his prosthetic eye. After he fell to the floor, Plaintiff alleges the Defendant Sheriffs tasered him above the groin area. Shortly thereafter, he was taken to a searching area outside his cell, slammed to the floor and handcuffed such that the handcuffs cut off the circulation to his hands and feet. On August 14, 2009, Plaintiff alleges he underwent eye surgery as a result of the pepper ball that struck his eye. The next day, Plaintiff alleges he was further injured in San Diego County Jail when the medical staff removed his bandages. As a result, Plaintiff alleges he needed further corrective surgery on February 26, 2010. Plaintiff's complaint identified the medical staff involved as John Doe defendants to be named after discovery. Plaintiff seeks compensatory and punitive damages in an amount to be determined at trial. [ECF No. 1]

III. PROCEDURAL HISTORY

1. On December 19, 2011, the pro se Plaintiff filed a verified complaint alleging Cruel and Unusual Punishment under 42 U.S.C. § 1983 against Defendants. [ECF No. 1.]

2. On March 26, 2012, Plaintiff moved for an extension to amend the pleadings via letter to the Court. [ECF No. 20.]

3. On April 2, 2012, Plaintiff's motion was granted, extending the filing deadline for motions, amendments and pleadings to April 6, 2012. [ECF No. 21.]

4. On April 6, 2012, Plaintiff moved for a second Extension of Time to File Motion for Leave to Amend. [ECF No. 26.]

5. On April 17, 2012, the extension request was granted and Plaintiff was ordered to provide the names and addresses for any Doe Defendant no later than May 30, 2012. [ECF No. 31.]

6. On July 3, 2012, Plaintiff moved for a third Extension of Time to Amend Complaint [ECF No. 74.]

7. On August 22, 2012, Plaintiff's motion to amend was granted adding K. Kamoss as a Doe Defendant substitution. [ECF No. 110.]

8. On November 6, 2012, Plaintiff filed a motion to amend the complaint to add Dr. Christie Keays as a Doe ...


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