United States District Court, S.D. California
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]
BARRY TED MOSKOWITZ, CHIEF JUDGE UNITED STATES DISTRICT COURT
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.
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.
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.
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.)
Plaintiff's Motion for Leave to Amend
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
U.S. Marshal Service
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.)
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
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 ...