Sims v. Wegman et al

Filing 22

ORDER DIRECTING Plaintiff to Respond Regarding Defendant Bowman, signed by Magistrate Judge Erica P. Grosjean on 5/23/17. 30-Day Deadline. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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QUINCY SIMS,
Plaintiff,

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v.
C. BOWMAN,
Defendant.

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1:14-cv-00415-EPG (PC)
ORDER DIRECTING PLAINTIFF TO
RESPOND REGARDING
DEFENDANT BOWMAN
(ECF NO. 21)
30-DAY DEADLINE

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Quincy Sims (“Plaintiff”) is proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the complaint commencing this action on

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March 24, 2014. (ECF No. 1). This action now proceeds on the First Amended Complaint

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filed on March 10, 2015, against defendant C. Bowman on Plaintiff's Religious Land Use and

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Institutionalized Persons Act of 2000 and First Amendment free exercise claim. (ECF Nos. 8,

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10, & 12).

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On June 7, 2016, the Court issued an order directing the United States Marshal Service

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(“the Marshal”) to serve process upon defendant C. Bowman. (ECF No. 14). On September

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16, 2016, the Marshal filed a return of service unexecuted, indicating that the Marshal was

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unable to locate defendant Bowman for service of process (the California Department of

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Corrections and Rehabilitation told the Marshal that defendant Bowman resigned, joined the

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army, and did not leave a forwarding address). (ECF No. 15). On September 22, 2016, the

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Court issued an order for Plaintiff to show cause why the case should not be dismissed for

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failure to serve defendant C. Bowman. (ECF No. 16). On October 18, 2016, Plaintiff filed a

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response. (ECF No. 17). Plaintiff stated that he obtained “additional information to provide
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the Marshal for service.” (Id.). Accordingly, the Court discharged the order to show cause and

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provided Plaintiff with the appropriate service documents to complete and return. (ECF No.

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18). Plaintiff submitted the service documents (ECF No. 19), and the Court directed the

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Marshal to serve process on defendant Bowman. (ECF No. 20).

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On May 22, 2017, the Marshal returned the summons unexecuted. (ECF No. 21). It

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appears that the Marshal mailed waivers of service to both the Attorney General and the

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Department of Defense, and did not receive a response from either. The address Plaintiff

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provided the Marshal for service was “1400 Defense Pentagon, Washington D.C. 20301.”

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The Court will not require the Marshal to attempt personal service on the Pentagon at

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this time. It is not clear that this is a correct address for Defendant Bowman and the Court

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requires more information before requiring the Marshal to attempt personal service. If Plaintiff

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does not have a current address for Defendant Bowman, the Court will dismiss Plaintiff’s case

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against Defendant Bowman without prejudice.

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Thus, the Court requires a response from Plaintiff regarding how to proceed in light of

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the failure to locate Defendant Bowman. The Court will give Plaintiff three options: 1) Provide

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another address for defendant Bowman, in which case the Court will send Plaintiff the

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appropriate service documents to complete and return; 2) Provide credible evidence indicating

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that defendant Bowman is at the Pentagon such that the Court should order the Marshal to

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attempt personal service on the Pentagon in order to service Defendant Bowman; 3) Dismiss

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Defendant Bowman without prejudice; 4) File a motion to for a third party subpoena if Plaintiff

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believes there is someone who has documents indicating where Defendant Bowman can be

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served.1

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Accordingly, based on the foregoing, IT IS ORDERED that:

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To issue a subpoena, Plaintiff must file a request for the issuance of a subpoena duces tecum
with the Court. If the Court approves the request, it may issue Plaintiff a subpoena duces tecum, commanding the
production of documents from a non-party, and may command service of the subpoena by the United States
Marshal Service. Fed. R. Civ. P. 45; 28 U.S.C. 1915(d). However, the Court will consider granting such a request
only if the documents sought from the non-party are not equally available to Plaintiff. Fed. R. Civ. P. 34. In any
request for a subpoena, Plaintiff must: (1) identify with specificity the documents sought and from whom, and (2)
make a showing in the request that the records are only obtainable through that third party. The documents
requested must also fall within the limited scope of discovery.
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1. Within 30 days of the date of service of this order, Plaintiff shall file a response

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regarding service on Defendant Bowman, as described in this order;

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2. The Marshal is not required to attempt personal service on defendant Bowman at

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the Pentagon until further order of the Court;

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3. The Clerk of Court is directed to serve a copy of this order on the Marshal; and

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4. Failure to comply with this order may result in dismissal of this action of

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Defendant Bowman from this action without prejudice.

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IT IS SO ORDERED.
Dated:

May 23, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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