United States District Court, E.D. California
H. DYMITRI HARASZEWSKI, Plaintiff,
KNIPP, et al., Defendants.
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
with an action under 42 U.S.C. § 1983. Plaintiff alleges
defendants retaliated against him, interfered with his mail,
placed him in segregation as a punitive measure, and deprived
him of his property. On December 2, 2019, plaintiff filed a
document requesting service of the complaint on defendant
Garcia. For the reasons set forth below, this court will give
plaintiff an opportunity to attempt to have the complaint
served on Garcia.
Allegations of the Third Amended Complaint
case is proceeding on plaintiff's third amended
complaint, filed July 21, 2017. (ECF No. 42.) Plaintiff
alleges that on November 26, 2011 at Mule Creek State Prison
(“MCSP”), he was removed from his cell and a
large bag of his papers, books, and photos was confiscated.
Plaintiff was then notified that he was being placed in
administrative segregation (“ad seg”) because he
was being investigated as a “threat to the safety and
security” of the prison due to his possession of
“harassing materials.” Plaintiff contends the
notice of the basis for the ad seg placement was insufficient
to permit him to argue he should not be placed there. He had
three formal hearings, one interrogation, and two informal
discussions with officers about the basis for the
segregation. Plaintiff alleges that he never received any
specific reason for his ad seg placement.
further alleges that his cell in ad seg lacked a “desk,
seat, bed, or any other basic cell
‘amenity.'” It included only a toilet; a
thin, bare mattress with no sheets on the concrete floor;
“very little personal property, ” and no
electricity for his appliances. Plaintiff was in this cell
for 34 days.
then spent several months attempting to have his property
returned. During that time, he was threatened by officers
with harm if he did not stop complaining about the seizure of
his property. As a result of those threats, plaintiff stopped
his attempts to obtain his property. Finally, plaintiff
alleges interference with his legal and other mail by several
the court screened plaintiff's third amended complaint,
it found plaintiff stated potentially cognizable claims
against the following defendants: Austin, Sepulveda, Garcia,
Reese, Casagrande, Sherlock, Dowdy and Lucca. (ECF No. 51.)
After plaintiff submitted service documents for these eight
defendants, the court ordered the United States Marshal to
notify defendants of their right to waive service of the
complaint and, if they did not do so, to personally serve the
defendants. (ECF No. 54.) On June 8, 2018, executed waivers
of service were returned by all defendants except defendant
Garcia. (See ECF No. 57.)
a clerical error, the Marshal did not file the unexecuted
return of service for defendant Garcia until just recently.
(See ECF No. 89.) That form states that the Marshal
was unable to serve defendant Garcia because “Per the
Litco/Office of Legal Affairs for CDCR, R. Garcia no longer
works for MCSP or CDCR. Not willing to accept service.”
2019, the court granted defendant Austin's motion to
dismiss. (ECF No. 79.) On July 10, the remaining defendants,
except for defendant Garcia, filed an answer (ECF No. 80) and
on August 20, the court issued a Discovery and Scheduling
Order setting deadlines of December 20, 2019 for discovery
and March 20, 2020 for non-discovery pretrial motions (ECF
No. 84.) The discovery deadline has been continued through
January 20, 2020. (ECF No. 88.)
FOR SERVICE ON GARCIA
when the Marshal is unable to serve a defendant, the
plaintiff and the court are informed right away. In this
situation, the court will direct plaintiff to attempt to
determine the defendant's address and, if he is unable to
do so, to seek court help. Here, however, neither the court
nor plaintiff was informed that Garcia had not been served.
Because this case has been pending for a significant period
of time, this court finds it in the interests of justice and
most efficient to direct defendants' counsel to attempt
to determine Garcia's address by contacting CDCR for
Garcia's forwarding information.
Garcia's contact information is available, this court
will order the United States Marshal to serve Garcia quickly.
At that time, the court will consider extending any deadlines
in this case. However, if that contact information is not
available, then the court cannot order service on Garcia.
Plaintiff may then ...