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Shepard v. Cohen

United States District Court, E.D. California

June 16, 2016

LAMONT SHEPARD, Plaintiff,
v.
COHEN, et al., Defendants.

         ORDER DENYING PLAINTIFF'S MOTION TO STAY PROCEEDINGS, OR FOR EXTENSION OF TIME, TO ADD OR REINSTATE DEFENDANTS AND INITIATE FURTHER SERVICE OF PROCESS (ECF No. 100.) ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL AND/OR INVESTIGATOR (ECF No. 99.)

         I. BACKGROUND

         Lamont Shepard (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. The incident at issue in this case occurred on December 13, 2008 at Corcoran State Prison in Corcoran, California while Plaintiff was incarcerated there. Plaintiff filed the Complaint commencing this action on March 30, 2011. (ECF No. 1.) This action now proceeds on the Second Amended Complaint filed on May 19, 2014, against defendants Sergeant J. Lopez, C/O Z. Dean, and C/O J. Campbell on Plaintiff's excessive force claim. (ECF No. 41.) This case is scheduled for jury trial to commence on August 2, 2016 at 1:00 p.m. before District Judge Dale A. Drozd. The pretrial conference is scheduled for June 20, 2016 at 1:30 p.m. before Judge Drozd.

         On June 9, 2016, Plaintiff filed a motion to stay the proceedings in this case, or for a sixty-day extension of time, to add or reinstate defendants and initiate further service of process. (ECF No. 100.) On the same date, Plaintiff also filed a motion for appointment of counsel and/or investigator. (ECF No. 99.)

         II. PLAINTIFF’S MOTION FOR STAY OR EXTENSION OF TIME

         Plaintiff requests a stay of the proceedings in this case, or an extension of time, to add or reinstate defendants Dr. Cohen, LVN Vera Brown, and RN Antonia Palos, and initiate further service of process.

         A. Dr. Cohen

         Plaintiff's Second Amended Complaint alleges that Dr. Cohen was the doctor who made the decision to forcefully inject Plaintiff with medication. Plaintiff contends that Dr. Cohen's decision violated his Eighth Amendment right to be free from excessive force, and his Fourteenth Amendment right to due process. Dr. Cohen was employed at CSP and was fired before Plaintiff's lawsuit was filed. Neither CDCR nor Plaintiff has a current address for Dr. Cohen. As described below, he was dismissed from this action on December 21, 2015 without prejudice for Plaintiff's failure to serve him.

         Plaintiff wishes to delay the trial against remaining defendants Lopez, Dean, and Campbell in order to obtain an investigator or other assistance to locate Dr. Cohen. Plaintiff contends that Dr. Cohen can be located, because in 2010 Dr. Cohen was located and served in Plaintiff's other case 1:09-cv-01628-OWW-GBC-PC;[1] Shepard v. Cohen, et al. Plaintiff also suggests that Dr. Cohen “can be googled by his license I.D.# and/or by CDCR contract with defendant Cohen from the time period of December 13, 2008 thru May 2016.” (ECF No. 100 at 2.)

         The U.S. Marshal (“Marshal”) has previously attempted service upon Dr. Cohen twice in this case, at different addresses, without success. On August 22, 2014, the Court issued an order directing the Marshal to initiate service of process of the Second Amended Complaint upon defendants Brown and Cohen. (ECF No. 54.) On May 26, 2015, the Marshal filed a return of service unexecuted as to defendant Cohen. (ECF No. 78.) The return of service indicated that on September 26, 2014, the Marshal mailed service documents to defendant Cohen at Corcoran State Prison, at the address provided by Plaintiff Id On May 26, 2015, the Marshal was unable to locate and serve defendant Cohen. Id On May 29, 2015, the Court issued an order for Plaintiff to show cause why defendant Cohen should not be dismissed from this case, for Plaintiffs failure to effect service pursuant to Rule 4(m). (ECF No. 80.) On June 12, 2015, Plaintiff responded to the order, reporting that he did not know defendant Cohen's current address, and requesting assistance by the CDCR. (ECF No. 82.)

         On July 9, 2015, the Court issued an order directing the Marshal to attempt service upon defendant Cohen using the assistance of the CDCR's Legal Affairs Division to locate Cohen. (ECF No. 83.) On December 3, 2015, the Marshal filed a return of service unexecuted as to defendant Cohen, indicating that on July 25, 2015, they contacted CDCR's Special Investigator for CDCR's Legal Division, who provided a new address for Cohen. On October 30, 2015, the Marshal mailed service documents to the new address, which was found to be invalid. (ECF No. 88.) On November 19, 2015, the CDCR reported they had no new information. Id. Thus, the Marshal was unable to locate defendant Cohen for service.

         On December 21, 2015, the Court dismissed Dr. Cohen from this action, without prejudice, due to Plaintiffs failure to provide sufficient information for the Marshal to locate and serve Dr. Cohen.[2] (ECF No. 90.)

         On Plaintiff's suggestion, the Court has reviewed case 1:09-cv-01628-OWW-GBC-PC to find an address for Dr. Cohen. In that case, Dr. Cohen was successfully served at Corcoran State Prison on July 28, 2010. (1:09-cv-01628, ECF No. 24.) This information, however, is not useful for further service, because the Marshal attempted service on Dr. Cohen at Corcoran State Prison in 2015, as discussed above, and was unable to serve Dr. Cohen there.

         The Court finds that at this late stage of the proceedings, on the eve of trial, it would cause undue delay to postpone trial for the remaining defendants and would prejudice the defendants who are preparing for trial in August. The incident took place more than seven years ago. The case has been pending for more than five years. The dismissal of Dr. Cohen was without prejudice so the case against him may go forward at another time, apart from the case against the remaining defendants, if Plaintiff is able to locate him. Plaintiff had ample time to locate Dr. Cohen, and the Court and CDCR made repeated efforts to serve him to no avail. There is no guarantee he can be found with more time. Therefore, as to the request to delay trial in the hopes of finding defendant Dr. Cohen, Plaintiff's motion shall be denied.

         B. RN ...


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