Opinion
1:16-cv-01212-DAD-GSA-PC
02-04-2021
JEREMY JONES, Plaintiff, v. ARNETTE, et al., Defendants.
ORDER DISCHARGING ORDER TO SHOW CAUSE
(ECF No. 15.)
I. BACKGROUND
Jeremy Jones ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132.
On June 8, 2020, the Court found that service of the Second Amended Complaint was appropriate in this case as to Defendants Arnette, Flores, Lopez, Zamora, Vasquez, Gonzalez, and Keener for violation of the Eighth Amendment, Fourteenth Amendment, and ADA. Electronic service was then ordered, which directed the CDCR "no later than 40 days" after service of the Court's order to "file with the Court the 'CDCR Notice of E-Service Waiver' advising the Court which defendant(s) . . . will be waiving service of process without the need for personal service by the United States Marshal." (ECF No. 48, Order at 3:26 - 4: 1.)
According to the court's record, CDCR returned Notices of E-Service Waiver for Defendants Gonzalez, Flores, Arnette, and Keener, and these four Defendants filed an Answer to the complaint on October 30, 2020. (ECF Nos. 53, 54, 57.) However, there was no record that CDCR had returned Notices for Defendants Lopez, Zamora, or Vasquez, and the forty-day time period had expired.
On January 22, 2021, the court issued an order for CDCR to show cause why sanctions should not be imposed for failure to comply with the court's June 8, 2020 order. (ECF No. 64.) On February 2, 2021, CDCR filed a response to the order to show cause. (ECF No. 65.)
II. CDCR'S RESPONSE
CDCR responds with evidence showing that they complied with the June 8, 2020 order. California Deputy Attorney General Janet N. Chen, by special appearance for CDCR, declares:
On July 17, 2020, CDCR sent an email to FilingsFresno@caed.uscourts.gov, with an attachment entitled "CDCR Notice of E-Service Waiver." The attachment indicates that Defendants Arnett, Flores, and Keener intend to waive service; that Defendants Lopez, Zamora, and Vasquez do not intend to waive service; and that Defendant Gonzales requests additional time to file his notice of intent to waive or not waive service.(Chen Decl. ECF No. 65 at 3 ¶4.) CDCR submitted a copy of the email, with confidential information redacted. (Id., Exh. A.) The "Notice of E-Service Waiver," which had been attached to the email, was not submitted by CDCR as part of their response to the order to show cause, due to the confidential nature of the information. (Id. at 3 ¶4.) CDCR was informed that it was already provided to the court with CDCR's July 17, 2020 email. (Id.)
Chen declares that by the same email, CDCR sent a "Request for Extension of Time to File CDCR Notice of E-Service Waiver" on behalf of defendant Gonzalez, which was filed as ECF No. 50. (Id. at ¶5.) However, the Notice of Intent to Waive or Not Waive Service on behalf of the remaining Defendants does not appear to have been filed. (Id.)
III. DISCUSSION AND CONCLUSION
The court has reviewed the January 27, 2020 email sent to the court by CDCR, and CDCR's evidence that on July 17, 2020, CDCR provided the court with a copy of a "CDCR Notice of E-Service Waiver," indicating that Defendants Arnett, Flores, and Keener intend to waive service; that Defendants Lopez, Zamora, and Vasquez do not intend to waive service; and that Defendant Gonzales requests additional time to file his notice of intent to waive or not waive service. CDCR's evidence shows that they have complied with the court's June 8, 2020 order, but the "CDCR Notice of E-Service" was not filed by the court on July 17, 2020, through no fault of CDCR. Thus, CDCR has shown that they complied with the court's June 8, 2020 order and that sanctions should not be imposed. Accordingly, the court's order to show cause shall be discharged.
Therefore, IT IS HEREBY ORDERED that:
1. The court's order to show cause, issued on January 22, 2021, is DISCHARGED; andIT IS SO ORDERED.
2. The Clerk of Court shall file under seal CDCR's Notice of E-Service Waiver as to Defendants Arnett, Flores, Keener, Lopez, Zamora, and Vasquez which was submitted to the court by CDCR via email on July 17, 2020.
Dated: February 4 , 2021
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE