Opinion
2:21-cv-06903-JAK-SHK
02-26-2024
Ronald Lee Adams v. California Department Corrections, et al.
D. Castellanos
D. Castellanos
PRESENT THE HONORABLE SHASHI KEWALRAMANI, UNITED STATES MAGISTRATE JUDGE
CIVIL MINUTES - GENERAL
Proceedings (IN CHAMBERS): ORDER VACATING ORDER TO SHOW CAUSE [ECF NO. 65] AND DIRECTING PLAINTIFF TO ISSUE A THIRD-PARTY SUBPOENA
On August 26, 2021, plaintiff Ronald Lee Adams (“Plaintiff”) filed a complaint (“Complaint” or “Compl.”) alleging violations of civil rights under 42 U.S.C. § 1983 (“§ 1983”). Electronic Case Filing Number (“ECF No.”) 1, Compl. After the Court screened and dismissed with leave to amend two of Plaintiff's amended complaints, on June 30, 2023, Plaintiff filed the operative Third Amended Complaint (“TAC”) naming various correctional officers who worked at California Man's Colony East State Prison (“CMC East”) as defendants. ECF No. 44, TAC. On September 22, 2023, the Magistrate Judge entered a Report and Recommendation (“R&R”) recommending dismissal of certain defendants from the case and recommending service of the TAC on the remaining defendants (“Defendants”). ECF No. 49, R&R. On October 19, 2023, the Court accepted the R&R, and on October 23, issued the summons (“Summons”) to Defendants. ECF Nos. 52, 54.
On December 13, 2023, Defendants J. Gastelo, B. Thompson, Howard E. Moseley, J. Lewis, E. Scotland, K. Valaau, and S. Quirarte filed a waiver of service (“Waiver of Service”). ECF No. 57, Waiver of Service. The California Department of Corrections and Rehabilitation (“CDCR”) informed the Court that Defendants V. Catalina and P. Dessenberger could not be identified and, consequently, have not been served with the TAC or appeared in this matter.
On February 5, 2024, the Court issued an Order to Show Cause Why Defendants V. Catalina and P. Dessenberger Should Not Be Dismissed (“OSC”), in which the Court ordered Plaintiff to:
issu[e] a third-party subpoena to [California Men's Colony East] [(“CMC East”)] and/or CDCR under Rule 45 seeking the correct identities of Defendants V. Catalina and P. Dessenb[e]rger . . . and filing a response to this OSC indicating the steps Plaintiff has taken to obtain the names of V. Catalina and P. Dessenb[e]rger so they may be served and subject to the Court's jurisdiction.
ECF No. 65, OSC at 2 (emphasis in the original).
On February 16, 2024, the Court received Plaintiff's response to the OSC (“OSC Response”). ECF No. 67, OSC Response. Plaintiff attached to the OSC Response the following five documents, which he argues proves that Defendants Catalina and Dessenberger work at CDCR and are “key to this civil suit”:
• Exhibit A is “a Disciplinary Hearing Result Sheet,” in which P. Dessenberger signed as the “Hearing Official”;
• Exhibit B is a document titled “Memorandum Dated December 28, 2019” and was “an answer to a Prison Appeal file[d] [by Plaintiff] for due process violation by Defendant P. Dessenberger,” in which Defendant Gastelo references “Senior Hearing Officer (SHO) Correctional Lieutenant P. Dessenberger”;
• Exhibit C is a “Crime Incident Report Part C Staff Report” which is “signed by someone name[d] V. Catalina”;
• Exhibit D is a “Crime Incident Report Part C-2 Review Notice” which “is address[ed] to Defendant V. Catalina”; and
• Exhibit C is a “Crime Incident Report Part C1 Supplement CDCR 837” which contains a V. Catalina's signature as “Reporting Staff.”Id. at 2-4. These documents demonstrate that Plaintiff has made a good faith effort to identify Defendants V. Catalina and P. Dessenberger based on official reports that CDCR provided to Plaintiff. Good cause appearing, the Court hereby VACATES the OSC.
All capitalization has been normalized.
However, without more identifying information for Defendants Catalina and Dessenberger, service of process in this matter cannot move forward and the Court is without jurisdiction over these Defendants. “[S]ervice of process is the means by which a court asserts its jurisdiction over the person[.]” S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007) (citation omitted). “‘Service of a summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant[.]'” Id. (quoting Federal Rule Civil Procedure (“Fed. R. Civ. P.” or “Rule”) 4(k)). “If 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 that defendant or order that service be made within a specified time[,]” however, “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m).
“[I]n circumstances where the defendants' identity are not known prior to filing the action,” the Court may afford a plaintiff the “opportunity to identify the defendant through limited discovery, ‘unless it is clear that discovery would not uncover the identities or that the complaint would be dismissed on other grounds.'” Mohammad v. California Department of Corrections, Case No. 14-cv-03837-BLF, 2015 WL 720721, at *1 (N.D. Cal. Feb. 18, 2015) (quoting Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999)).
Here, such limited discovery may be accomplished pursuant to Rule 45 through a third-party subpoena directed to CMC East and/or CDCR seeking the correct identities of Defendants V. Catalina and P. Dessenberger. See id. (citing Fed.R.Civ.P. 45). In the OSC, the Court instructed Plaintiff to issue a Rule 45 subpoena to CMC East and/or CDCR to request information on these Defendants, but Plaintiff has not done so. See ECF No. 65, OSC at 2. Accordingly, Plaintiff is ORDERED to issue a Rule 45 subpoena upon CMC and CDCR requesting identifying information on V. Catalina and P. Dessenberger no later than March 29, 2024.
To assist in doing so, the Clerk of Court is directed to mail two (2) blank Form AO-88B to Plaintiff along with this Order. The Clerk of Court is also directed to provide Plaintiff with a blank USM-285 form so that Plaintiff may request service of the two subpoenas by United States Marshal Service (“USMS”). Plaintiff must address the subpoenas to CMC East and CDCR, complete the AO-88B forms, and submit them to the Court to be signed by the Clerk. Plaintiff is instructed to attach to the subpoenas the exhibits attached to his OSC Response which identify V. Catalina and P. Dessenberger by name. Additionally, Plaintiff must also fill out the USM-285 form and return it to the Court to request service of the subpoenas by USMS. Plaintiff must return both the subpoenas and USM-285 form no later than March 29, 2024.
Plaintiff is warned that failure to timely satisfy this order will result in a recommendation to the assigned United States District Judge that Defendants V. Catalina and P. Dessenberger be dismissed from this action without prejudice in accordance with Rule 4(m) due to the Court's lack of personal jurisdiction and for failure to prosecute and follow Court orders.
In sum, the Court hereby (1) VACATES the OSC and (2) ORDERS Plaintiff to issue a Rule 45 third-party subpoena on CMC East and CDCR and request service by USMS no later than March 29, 2024.
IT IS SO ORDERED.