Recino v. Unknown

Filing 58

ORDER DIRECTING Plaintiff to Provide Written Notice Identifying Doe Defendants for Service of Process or SHOW CAUSE Why this Action should not be Dismissed; Show Cause Response due within Thirty (30) Days signed by Magistrate Judge Barbara A. McAuliffe on 9/11/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO R. RECINO,

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Plaintiff,
v.
UNKNOWN,

ORDER DIRECTING PLAINTIFF TO
PROVIDE WRITTEN NOTICE
IDENTIFYING DOE DEFENDANTS FOR
SERVICE OF PROCESS OR SHOW CAUSE
WHY THIS ACTION SHOULD NOT BE
DISMISSED

Defendant.
THIRTY (30) DAY DEADLINE

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Case No. 1:15-cv-00362-LJO-BAM (PC)

Plaintiff Roberto R. Recino (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action. This action currently proceeds on Plaintiff’s third amended

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complaint against two unknown correctional officers for failing to intercede as Plaintiff was

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beaten by other inmates, and for delaying in obtaining medical treatment for him after the beating,

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in violation of the Eighth Amendment.

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On July 27, 2016, the Court found service of Plaintiff’s third amended complaint

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appropriate and directed Plaintiff to provide, within forty-five (45) days, a motion to substitute

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the identities of the Doe Defendants or a status report indicating the actions he took to locate their

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names. (ECF No. 33.)

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Following a series of motions to compel and for issuance of a subpoena, on September 13,

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2017, the Court granted in part Plaintiff’s motion for issuance of a subpoena duces tecum

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directing the Warden of California State Prison, Corcoran (“CSP-Corcoran”), to produce any and
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all medical reports relating to Plaintiff, from April 2004 to August 2004. (ECF No. 46.) The

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subpoena was returned executed on September 20, 2017. (ECF No. 48.) Plaintiff failed to

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communicate with the Court thereafter, and on April 17, 2018, the Court issued an order directing

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Plaintiff to provide written notice identifying the Doe Defendants or to show cause why the Doe

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Defendants should not be dismissed and this action closed. (ECF No. 49.)

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On May 30, 2018, the Court issued findings and recommendations recommending that the

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Doe Defendants be dismissed and this action closed, without prejudice. (ECF No. 50.) The

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findings and recommendations were served on Plaintiff and contained notice that any objections

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thereto were to be filed within fourteen (14) days after service. (Id.) No objections were filed,

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and the findings and recommendations were adopted on June 25, 2018. (ECF No. 51.) Judgment

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was entered accordingly the same day. (ECF No. 52.)

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On August 7, 2018, Plaintiff filed a motion to reopen the case and requesting appointment

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of counsel. (ECF No. 53.) Plaintiff stated that, following service of the subpoena duces tecum,

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he never received a response from the Warden of CSP-Corcoran, the Court, or the Attorney

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General’s Office regarding the requested documents. (Id.) The Court construed the motion to

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reopen the case as a motion for reconsideration and granted the motion on August 13, 2018.

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(ECF No. 54.)

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The Court provided the Warden of CSP-Corcoran, or another representative of CDCR, an

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opportunity to respond to Plaintiff’s motion in the form of a short declaration. On September 10,

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2018, D. McGuire, the Litigation Coordinator at Richard J. Donovan Correctional Facility

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(“RJD”), filed a declaration in response to Plaintiff’s motion. (ECF No. 57.)

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D. McGuire declares under penalty of perjury that, pursuant to the Court’s order, the

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subpoena duces tecum was originally served on the Litigation Coordinator at California State

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Prison, Corcoran. However, the subpoena was forwarded to RJD as that was where Plaintiff was

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housed at the time, and therefore RJD was the appropriate custodian of Plaintiff’s medical

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records.

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In response to the subpoena D. McGuire obtained copies of the requested documents,
which were then served on Plaintiff by Correctional Counselor S. Lopez. D. McGuire has
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attached a copy of a CDCR 128-B Chrono, indicating that the requested documents were served

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on Plaintiff on October 10, 2017. Plaintiff’s signature and CDC number appear on the final page

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of the chrono. (ECF No. 57, p. 5.)

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As the response from D. McGuire directly contradicts Plaintiff’s contention that he

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received no response from CDCR following service of the subpoena, and Plaintiff has not

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otherwise explained his failure to provide written notice identifying the two unknown correctional

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officers for service of process, IT IS HEREBY ORDERED as follows:

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1. Within thirty (30) days from the date of service of this order, Plaintiff shall provide the

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Court with written notice identifying Doe Defendants with enough information to locate

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the defendants for service of process, or shall show cause in writing why this action

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should not be dismissed for Plaintiff’s failure to prosecute; and

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2. Plaintiff’s failure to comply with this order will result in dismissal of this action for
failure to prosecute.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 11, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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