Moore v. Gipson et al

Filing 145

ORDER to SHOW CAUSE Regarding Plaintiff's Failure to Provide Sufficient Information to Effectuate Service on Registered Nurse Sabios, signed by Magistrate Judge Barbara A. McAuliffe on 4/3/19. Show Cause Response Due Within Fourteen Days. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MERRICK JOSE MOORE, 12 Plaintiff, ORDER TO SHOW CAUSE REGARDING PLAINTIFF’S FAILURE TO PROVIDE SUFFICIENT INFORMATION TO EFFECTUATE SERVICE ON REGISTERED NURSE SABIOS Defendants. (ECF Nos. 122, 143) 13 14 15 16 v. CASAS, et al., Case No. 1:13-cv-01820-BAM (PC) FOURTEEN (14) DAY DEADLINE 17 18 Plaintiff Merrick Jose Moore (“Plaintiff”) is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action under 42 U.S.C. § 1983. All parties have consented to 20 Magistrate Judge jurisdiction. (ECF Nos. 7, 74.) This matter is set for trial on April 29, 2019. 21 On March 5, 2019, Plaintiff’s motion for attendance of incarcerated and unincarcerated 22 witnesses was granted with respect to the attendance of unincarcerated witnesses Sergeant Love, 23 Nurse Sabios, and Nurse Savage. (ECF No. 122.) Plaintiff submitted checks made out to these 24 witnesses for the appropriate witness fees on March 27, 2019, and the Court directed service of 25 subpoenas on the witnesses the same date. (ECF No. 139.) 26 On April 2, 2019, subpoenas were returned executed as to Sergeant Love and Nurse 27 Savage. (ECF No. 144.) However, the subpoena as to Nurse Sabios was returned unexecuted 28 and the check for Nurse Sabios was returned to the Clerk of the Court. (Id.) 1 1 Plaintiff, as an incarcerated pro se plaintiff proceeding in forma pauperis, is entitled to 2 rely on the U.S. Marshal for service of subpoenas for his unincarcerated witnesses. See Puett v. 3 Blandford, 912 F.2d 270, 275 (9th Cir. 1990). However, it is ultimately Plaintiff’s responsibility 4 to provide the Marshal with accurate and sufficient information to effect service. See Walker v. 5 Sumner, 14 F.3d 1415, 1421–22 (9th Cir. 1994), abrogated on other grounds by Sandin v. 6 Connor, 515 U.S. 472, 115 (1995). 7 Here, the U.S. Marshal attempted to serve Nurse Sabios with the information that Plaintiff 8 provided. However, the Marshal was informed by CDCR that no one by the name Sabios has 9 ever worked at CSP or any other CDCR location. CDCR suggested a possible spelling error, and 10 that the name of the witness might be spelled “Ceballos.” (ECF Nos. 143, 144.) Plaintiff 11 therefore has not provided sufficient information to identify and locate Nurse Sabios for service 12 of the subpoena. 13 Plaintiff will be afforded an opportunity to provide correct or updated information 14 regarding this witness’s name, as well as provide a new check for the appropriate witness fees 15 made out to the name of the correct individual. Regarding the check made out to R.N. Sabios, 16 the Court will physically return the check to Plaintiff at trial, unless Plaintiff requests otherwise. 17 Accordingly, it is HEREBY ORDERED that within fourteen (14) days from the date of 18 service of this order, Plaintiff shall provide the Court with the correct spelling of the name of 19 Nurse Sabios. If Plaintiff wishes to have the U.S. Marshal attempt to re-serve the subpoena on 20 this witness, Plaintiff should submit a new check or money order in the amount of $102.64, made 21 out to the correct spelling of the witness’s name. Plaintiff’s failure to timely comply with this 22 order will result in Plaintiff’s inability to call this witness to testify at trial. 23 24 25 IT IS SO ORDERED. Dated: /s/ Barbara April 3, 2019 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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