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Armenta v. Paramo

United States District Court, S.D. California

September 7, 2017

RICHARD ARMENTA, CDCR #G-39318 Plaintiff,
v.
D. PARAMO, Warden, et al., Defendants.

         ORDER: 1) DENYING DUPLICATIVE MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AS MOOT [ECF NO. 29] 2) DIRECTING DEPUTY ATTORNEY GENERAL TO PROVIDE DEFENDANTS' FORWARDING ADDRESSES IN CONFIDENTIAL MEMO TO U.S. MARSHAL IN ORDER TO EFFECT SERVICE PURSUANT TO 28 U.S.C. § 1915(D) AND FED. R. CIV. P. 4(C)(3) AND 3) GRANTING REMAINING DEFENDANTS' EX PARTE MOTION FOR EXTENSION OF TIME TO FILE A RESPONSIVE PLEADING [ECF NO. 33]

          HON. BARRY TED MOSKOWITZ, CHIEF JUDGE UNITED STATES DISTRICT COURT

         RICHARD ARMENTA (“Plaintiff”), currently incarcerated at California State Prison-Los Angeles County, is proceeding pro se and in forma pauperis (“IFP”) in the civil rights action filed pursuant 42 U.S.C. § 1983.

         I. Procedural History

         On July 21, 2017, the Court granted Plaintiff leave to file an Amended Complaint, denied Defendant Covel, Frost, Lopez, Paramo, Salinas, Sanchez, Stratton, Williams, and Zamora's pending Motion to Dismiss his original Complaint without prejudice as moot in light of Plaintiff's anticipated amendment, and cautioned Plaintiff of his need to properly serve two remaining parties (Murphy and Wiley). See ECF No. 23. On August 7, 2017, the Court further granted Plaintiff an additional 60 days leave from the date his Amended Complaint was filed to serve Defendants Murphy and Wiley, should he choose to rename them as parties. See ECF No. 28.

         On August 18, 2017, Plaintiff filed yet another copy of his previously granted Motion for Leave to Amend (ECF No. 29), together with his Amended Complaint (ECF No. 30). Plaintiff's Amended Complaint re-alleges Eighth and Fourteenth Amendment due process claims as to all previously named Defendants, including Wiley and Murphy. (Id. at 2-4.)

         On August 23, 2017, having been served with Plaintiff's Amended Complaint, counsel for Defendants Covel, Frost, Lopez, Paramo, Salinas, Sanchez, Stratton, Williams, and Zamora filed an ex parte Motion for Extension of Time in which to file their responsive pleading (ECF No. 33). Defendants request additional time, in part, in order to give Plaintiff additional time to serve Wiley and Murphy via the U.S. Marshal, and also to permit them the opportunity to properly review Plaintiff's 76-page Amended Complaint and to prepare and file one “uniform” and non-duplicative responsive pleading as to all named and served parties. (Id. at 2.)

         II. Plaintiff's Motion for Leave to Amend

         Plaintiff filed what appears to be a photocopy of his previous Motion for Leave to Amend (ECF Nos. 20, 29) together with his Amended Complaint (ECF No. 30), despite the fact that the Court had already granted him leave to amend (ECF No. 23). Because no further leave to amend is required, and Plaintiff's Amended Complaint has already been timely filed, his subsequent duplicate Motion is DENIED as moot and unnecessary.

         III. U.S. Marshal Service

         As noted above, the Court has also granted Plaintiff an additional 60 days leave from the date his Amended Complaint was filed on August 18, 2017, to re-attempt service via the U.S. Marshal upon Defendants G. Murphy and G. Wiley pursuant to Fed.R.Civ.P. 4(m). See ECF No. 28 at 2. In his Amended Complaint, Plaintiff alleges Murphy is employed as a Lieutenant Appeals Examiner in the CDCR's “Chief of Appeals Office” in Sacramento, California. (ECF No. 30 at 3). Plaintiff claims G. Wiley was “employed as a nurse” at Richard J. Donovan Correctional Facility (“RJD”) “on or about 3-3-15.” (Id. at 3, 6-7.)

         Plaintiff's previous attempts at serving these two parties were unsuccessful. As to Defendant Murphy, the U.S. Marshal returned proof of service as unexecuted on May 18, 2017, with a notation that the litigation coordinator at RJD was “unable to confirm that there is now or ever has been a G. Murphy employed at [R]D]” and that she was therefore “not authorized to accept service of his/her behalf.” (ECF No. 6). There is no proof of any unsuccessful or successful attempt by the U.S. Marshal as to G. Wiley, alleged to be a nurse practitioner at RJD, in the docket whatsoever.[1]

         Rule 4 of the Federal Rules of Civil Procedure provides that:

[i]f a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against the defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the ...

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