Damon Earl Franklin v. Jim McDonnell et al

Filing 19

ORDER TO SHOW CAUSE by Magistrate Judge Alicia G. Rosenberg. Plaintiff's 90-day period for accomplishing service of process began to run when his complaint was filed on February 22, 2016 and expired months ago. Fed. R. Civ. P. 4(m). IT IS ORDERE D that Plaintiff shall show cause in writing, on or before November 7,2016, why John Doe 1 should not be dismissed from this action without prejudice pursuant to Rule 4(m). Plaintiff should provide all information he has about John Doe 1 so that Doe, by his true name, can be substituted as a defendant and served with process at a valid address. (See Order for details.) (mp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 16-1192-CAS (AGR)

Title

Damon Earl Franklin v. Los Angeles County Sheriff, et al.

Present: The Honorable

Date

October 6, 2016

Alicia G. Rosenberg, United States Magistrate Judge

Marine Pogosyan

None

None

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiff

Attorneys Present for Defendants

None

None

Proceedings:

In Chambers: ORDER TO SHOW CAUSE

The pro se prisoner-plaintiff commenced this civil rights action by filing a complaint on
February 22, 2016. He sues Los Angeles County Sheriff Jim McDonnell and a deputy, “John
Doe 1.” Plaintiff alleges that the deputy’s absence from his post on December 1, 2014 allowed a
group of other inmates to attack and injure him. On April 25, 2016, McDonnell filed a motion to
dismiss (Dkt. No. 9) that is now fully briefed. Plaintiff has not substituted a named defendant
for John Doe, who thus remains unserved.
On June 22, 2016, Plaintiff filed a document seeking, among other things, discovery of
the “names or name of John Doe or Does . . . or any unnamed and unknown deputy sheriff who
was assigned to his post in Dorm 611 . . . on December 1, 2014.” (Dkt. No. 15 at 2.) On June
24, 2016, the Court construed this request as an interrogatory directed to McDonnell, deemed
served on that day. (Dkt. No. 16.) It is unclear how McDonnell responded, as discovery
responses are served but not filed.
John Doe must be either identified and served with process or dismissed from the action.
An “incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the
U.S. Marshal for service of the summons and complaint” after “having provided the necessary
information to help effectuate service under 28 U.S.C. § 1915 and Fed. R. Civ. P. 4. Puett v.
Blandford, 912 F.2d 270, 275 (9th Cir.1990); accord, Walker v. Sumner, 14 F.3d 1415, 1422
(9th Cir.1994), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995)).
When service cannot be accomplished due to the pro se plaintiff's failure to provide
sufficient information to identify or locate the defendant, and the plaintiff fails to remedy the
situation after being put on notice, dismissal without prejudice is appropriate. Walker, 14 F.3d at
1421-22 (holding that prisoner failed to show cause why his claims against prison official should
CV-90 (06/04)

CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 16-1192-CAS (AGR)

Date

Title

October 6, 2016

Damon Earl Franklin v. Los Angeles County Sheriff, et al.

not be dismissed under Rule 4(m) when prisoner failed to show “he provided the marshal with
sufficient information to serve [the defendant]”).
Plaintiff’s 90-day period for accomplishing service of process began to run when his
complaint was filed on February 22, 2016 and expired months ago. Fed. R. Civ. P. 4(m).
IT IS ORDERED that Plaintiff shall show cause in writing, on or before November 7,
2016, why John Doe 1 should not be dismissed from this action without prejudice pursuant to
Rule 4(m). Plaintiff should provide all information he has about John Doe 1 so that Doe, by his
true name, can be substituted as a defendant and served with process at a valid address.

Initials of Preparer

CV-90 (06/04)

CIVIL MINUTES - GENERAL

mp

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