Reid v. United States of America et al

Filing 133

ORDER for Plaintiff to SHOW CAUSE why Defendant Fenton and Doe Defendants #1-3 should not be dismissed from this case for failure to effect service signed by Magistrate Judge Gary S. Austin on 5/14/2022. 30-Day Deadline. (Lundstrom, T)

Case 1:14-cv-01163-BAK Document 133 Filed 05/16/22 Page 1 of 3

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

GORDON C. REID,

12

Plaintiff,

13
14

vs.
UNITED STATES OF AMERICA, et al.,

15

Defendants.

1:14-cv-01163-BAK (GSA)-PC
ORDER FOR PLAINTIFF TO SHOW
CAUSE WHY DEFENDANT FENTON
AND DOE DEFENDANTS #1-3 SHOULD
NOT BE DISMISSED FROM THIS CASE
FOR FAILURE TO EFFECT SERVICE
THIRTY-DAY DEADLINE

16
17
18
19
20
21

I.

BACKGROUND

22

Gordon C. Reid (“Plaintiff”) is proceeding with counsel in this civil rights action brought

23

pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971) and the Federal Tort Claims

24

Act, 28 U.S.C §§ 1346(b), 2671-2680. Plaintiff filed the Complaint commencing this action on

25

July 25, 2014. (ECF No. 1.)

26

II.

SERVICE OF PROCESS

27

Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, “if a defendant is not

28

served within 90 days after the complaint is filed, the court--on motion or on its own after notice
1

Case 1:14-cv-01163-BAK Document 133 Filed 05/16/22 Page 2 of 3

1

to the plaintiff--must dismiss the action without prejudice against that defendant or order that

2

service be made within a specified time. But if the plaintiff shows good cause for the failure, the

3

court must extend the time for service for an appropriate period.

4

III.

DISCUSSION

5

On March 19, 2021, the court directed the Clerk of Court to issue summonses for service

6

of the third amended complaint upon each defendant named in the third amended complaint.

7

(ECF No. 97.) On March 22, 2021, the Clerk issued summonses as to defendants Fenton, Garcia,

8

J. Ontiveroz, and United States of America. (ECF No. 98.) On May 13, 2021, executed

9

summonses were returned to the court for defendants Garcia, J. Ontiveroz, and United States of

10

America. (ECF No. 99.) On June 15, 2021, defendants Garcia, J. Ontiveroz, and United States

11

of America filed an answer to the complaint. (ECF No. 101.)

12

On May 13, 2022, Plaintiff filed a Fourth Amended Complaing naming defendants

13

United States of America, Captain Ray Garcia, Lieutenant Robert Fenton, Jason Ontiveroz

14

(Prison Guard), and John Does Nos. 1-3 (Lieutenants). (ECF No. 132.)

15

Here, Plaintiff is proceeding against Doe Defendants Nos. 1-3 (Lieutenants of the Guard)

16

for subjecting Plaintiff to excessive force and unconstitutional conditions of confinement in

17

violation of the Eighth Amendment. However, these defendants have not been served with

18

process because Plaintiff has not sufficiently identified them to enable service of process. Service

19

cannot be initiated on unknown defendants. Plaintiff will need to seek leave to amend to

20

substitute the true names of the Doe defendants once he learns who they are. See Wakefield v.

21

Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999); Merritt v. Los Angeles, 875 F.2d 765, 768 (9th

22

Cir. 1989); see Swartz v. Gold Dust Casino, Inc., 91 F.R.D. 543, 547 (D. Nev. 1981).
Moreover, the court finds no evidence on the court’s record that defendant Fenton was

23
24

served with process, or otherwise appeared in this case.

25

This case has been pending for nearly nine years and the discovery phase has been open

26

since July 22, 2021. Therefore, Plaintiff shall be required to show cause why defendant Fenton

27

and Doe Defendants Nos. 1-3 should not be dismissed from this action.

28

///
2

Case 1:14-cv-01163-BAK Document 133 Filed 05/16/22 Page 3 of 3

1

IV.

ORDER TO SHOW CAUSE

2

Accordingly, based on the foregoing, IT IS HEREBY ORDERED that within thirty

3

(30) days from the date of service of this order, Plaintiff shall show cause why defendant Fenton

4

and Doe Defendants Nos. 1-3 should not be dismissed from this action pursuant to Rule 4(m).

5
6
7
8

IT IS SO ORDERED.
Dated:

May 14, 2022

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3