Charles Keller Cooper Jr. v. Toms et al

Filing 84

(IN CHAMBERS): ORDER TO SHOW CAUSE WHY DEPUTIES THOMPSON AND BROWN SHOULD NOT BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO PROVIDE INFORMATION NECESSARY FOR SERVICE OF PROCESS by Magistrate Judge Alicia G. Rosenberg. IT IS ORDERED that Plaintiff shall show cause in writing, on or before August 10, 2018. Plaintiff should provide any additional information he has about Brown and Thompson so that they can be served with process. (see order for further details) (hr)

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

CV 17-2639-FMO (AGR)

Title

Charles Keller Cooper Jr. v. Sergeant Toms, et al.

Present: The Honorable

Date

July 12, 2018

Alicia G. Rosenberg, United States Magistrate Judge

Karl Lozada

None

None

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not present

None

Proceedings:

In Chambers: ORDER TO SHOW CAUSE WHY DEPUTIES
THOMPSON AND BROWN SHOULD NOT BE DISMISSED
WITHOUT PREJUDICE FOR FAILURE TO PROVIDE
INFORMATION NECESSARY FOR SERVICE OF PROCESS

On May 24, 2018, Plaintiff, a state inmate proceeding pro se and in forma pauperis, filed
the operative First Amended Complaint (“FAC”). He alleges violations of his civil rights by Los
Angeles County jail deputies identified as “Sergeant Thompson,” “Leonetti,” and “Sergeant
Brown,” sued in their individual and official capacities. He also sues Jim McDonnell, head of
the Los Angeles County Sheriff’s Department (“LASD”). As of July 12, 2018, the docket
reflects that no defendant has been served with process or has appeared, although the Court has
served two subpoenas on the LASD at Plaintiff’s request seeking identifying information about
the deputy defendants’ true names.
On June 8, 2018, the Court issued an order directing the U.S. Marshal to serve process on
Defendants Brown, Leonetti, McDonnell, and Thompson. (Dkt. No. 64.) The docket currently
reflects no result from the attempts at service on McDonnell or Leonetti, but it does reflect a
failed attempt to serve Brown and Thompson. Specifically, the process receipts filed on June 27,
2018 indicate that neither Brown nor Thompson could be served because, “per LASD: Unable to
identify correct employee with limited information provided.” (Dkt. Nos. 74, 75, 76, 77.)
As the Court previously has advised Plaintiff: “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. But 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).
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
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 17-2639-FMO (AGR)

Date

Title

July 12, 2018

Charles Keller Cooper Jr. v. Sergeant Toms, et al.

information to help effectuate service” under 28 U.S.C. § 1915 and Rule 4. Puett v. Blandford,
912 F.2d 270, 275 (9th Cir.1990); see also 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.
Plaintiff may be able to obtain further identifying information about Brown and
Thompson via a third subpoena, upon Court approval, directed to the LASD. Also, if and when
McDonnell or Leonetti has been served with process, Plaintiff may serve “party discovery,” such
as interrogatories and requests for production of documents, on the latter defendants.
IT IS ORDERED that Plaintiff shall show cause in writing, on or before August 10,
2018, why Brown and Thompson should not be dismissed from this action without prejudice
pursuant to Rule 4(m). Plaintiff should provide any additional information he has about Brown
and Thompson so that they can be served with process.

Initials of Preparer

CV-90 (06/04)

CIVIL MINUTES - GENERAL

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