United States District Court, E.D. California
March 30, 2015
RYAN BIGOSKI-ODOM, Plaintiff,
JAMES FIRMAN, et al., Defendants.
KIMBERLY J. MUELLER, District Judge.
Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by Eastern District of California local rules.
On March 3, 2015, the magistrate judge filed findings and recommendations, which were served on the parties and which contained notice that the parties may file objections within a specified time. Plaintiff has timely filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this court has conducted a de novo review of this case. Having carefully reviewed the file, for the reasons set forth herein the court declines to adopt the findings and recommendations.
This matter is before the court on defendants' June 30, 2014 motion for summary judgment, which the magistrate judge correctly finds has not been opposed by plaintiff. In her objections, plaintiff states that she never received a copy of the motion for summary judgment and that she would have opposed the motion had she received it. The proof of service appended to defendants' motion for summary judgment states that the motion was served on plaintiff on June 30, 2014, at the following address:
ECF No. 33-5.
A docket entry in this action on July 21, 2014 shows that a court order served on plaintiff on June 18, 2014 at the identical address was returned as undeliverable as addressed because the name and CDC number did not match. On July 22, 2014, the order was subsequently reserved on plaintiff at the same address using the CDC number WE7977. The latter CDC number is on the notice of change of address previously filed by plaintiff, on November 25, 2013, ECF No. 29. These facts support plaintiff's assertion that she did not receive defendants' summary judgment motion. For that reason, the current motion will be denied without prejudice to its renewal accompanied by proof that it has been properly served on plaintiff.
The magistrate judge correctly observes that defendant Dr. James Firman has not yet been served with process and recommends dismissal of this defendant pursuant to Federal Rule of Civil Procedure 4(m) for failure to timely effect service of process. In the objections, plaintiff presents an address for service on defendant Firman. Plaintiff also requests an opportunity to obtain a statement from Dr. Margaret Vincent, a physician at Sutter Health who treated plaintiff. The court will refer the matter back to the magistrate judge for such further orders regarding service of process and scheduling in this matter as may be appropriate.
Finally, plaintiff seeks reconsideration of a prior order denying his motion for appointment of counsel. She has concurrently filed a motion for appointment of counsel which is pending before the magistrate judge. Plaintiff's request for appointment of counsel by this court will be denied without prejudice.
In accordance with the above, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed March 3, 2015, are not adopted;
2. Defendant's unopposed motion for summary judgment (ECF No. 33) is denied without prejudice;
3. Plaintiff's request for appointment of counsel by this court contained in his objections, ECF No. 38, is denied without prejudice; and
4. This matter is referred back to the magistrate judge for further proceedings consistent with this order.