Lee v. Alamedia, et al

Filing 91

ORDER to SHOW CAUSE Why Defendant Garcia should not be Dismissed from this Action; Response from Plaintiff Due in Thirty Days signed by Magistrate Judge Gary S. Austin on 7/19/2011. Show Cause Response due by 8/22/2011. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NORRIS LEE,

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Plaintiff,

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1:02-cv-05037-LJO-GSA-PC
ORDER TO SHOW CAUSE WHY
DEFENDANT GARCIA SHOULD NOT BE
DISMISSED FROM THIS ACTION

v.
C/O HOUGH, et al.,

RESPONSE FROM PLAINTIFF DUE IN
THIRTY DAYS

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Defendants.
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/
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Norris Lee (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action

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filed pursuant to 42 U.S.C. § 1983. This action now proceeds with the Second Amended

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Complaint filed by Plaintiff on March 23, 2010, against defendants Correctional Officers M.

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Garcia, E. Hough, and M. White (“Defendants”), for failure to protect Plaintiff in violation of the

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Eighth Amendment.1 (Doc. 36.)

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On September 9, 2010, the Court forwarded documents to Plaintiff with instructions to

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complete and return them to the Court for service of process on Defendants. (Doc. 46.) On

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September 22, 2010, Plaintiff returned the completed documents, and the Court ordered the

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United States Marshal (“Marshal”) to initiate service of process upon Defendants. (Docs. 47,

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48.)

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On August 26, 2010, all other claims and defendants were dismissed from this action by the Court, based
on Plaintiff’s failure to state a claim. (Doc. 45.)

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On December 13, 2010, defendant White filed an answer. (Doc. 52.) On March 3, 2011,

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defendant Hough filed an answer. (Doc. 66.) On May 9, 2011, the Marshal filed a return of

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service unexecuted as to defendant Garcia, together with a notice from the California Substance

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Abuse Treatment Facility (“SATF”) informing the Marshal that M. Garcia is not currently

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employed at SATF and could not be identified.2 Plaintiff shall be ordered to show cause why

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defendant Garcia should not be dismissed from this action for failure to successfully complete

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service of process. Within thirty days, Plaintiff shall file a written response with the Court

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explaining why defendant Garcia should not be dismissed. In the alternative, Plaintiff may file a

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non-opposition to the dismissal of defendant Garcia.

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Accordingly, IT IS HEREBY ORDERED that:

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Within thirty days from the date of service of this order, Plaintiff shall file a

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written response showing cause why defendant Garcia should not be dismissed

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from this action for failure to successfully complete service of process;

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2.

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In the alternative, Plaintiff may file a written non-opposition to the dismissal of
defendant Garcia; and

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3.

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Plaintiff’s failure to comply with this order shall result in a recommendation that
this action be dismissed.

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IT IS SO ORDERED.

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Dated:
6i0kij

July 19, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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The Litigation Coordinator from SATF informed the Marshal that M. Garcia was “not currently employed
at CSATF” and “could not be identified.” Doc. 84 at 2.) “There were two possibilities; however neither person was
working at CDCR until after 2003. The complaint alleges the incident occurred in 2000.” Id.

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