United States District Court, E.D. California
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.)
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.
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
PLAINTIFF’S MOTION FOR STAY OR EXTENSION OF
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.
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.
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; 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.)
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.)
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.
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. (ECF No. 90.)
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.
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