Garrett v. Davey, et al.

Filing 22

ORDER Discharging 15 Order to Show Cause; Request for the Office of the Attorney General to Identify and Provide the Service Address for the Defendant Currently Identified as Lieutenant Gonzalez, signed by Magistrate Judge Erica P. Grosjean on 5/17/17. (Gonzalez, R)

1
2

UNITED STATES DISTRICT COURT

3

EASTERN DISTRICT OF CALIFORNIA

4
5
6

MARCUS LEWIS GARRETT,
Plaintiff,

7
8
9
10
11

v.
D. DAVEY and GONZALEZ,
Defendants.

1:16-cv-00636-EPG (PC)
ORDER DISCHARGING ORDER TO
SHOW CAUSE
(ECF NO. 15)
REQUEST FOR THE OFFICE OF THE
ATTORNEY GENERAL TO IDENTIFY
AND PROVIDE THE SERVICE
ADDRESS FOR THE DEFENDANT
CURRENTLY IDENTIFIED AS
LIEUTENANT GONZALEZ

12
13

Marcus Lewis Garrett (“Plaintiff”) is a state prisoner proceeding pro se and in forma

14

pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on

15

Plaintiff’s First Amended Complaint against defendants Davey and Gonzalez for failure to

16

protect in violation of the Eighth Amendment. (ECF Nos. 10 & 11). After Plaintiff completed

17

and returned the appropriate service documents (ECF No. 12), the Court ordered the United

18

States Marshal Service (“the Marshal”) to serve the defendants (ECF No. 13). However, the

19

summons for defendant Gonzalez was returned unexecuted. (ECF No. 14). According to the

20

Marshal, the “L/O at Corcoran State Prison” informed the Marshal that “no Lt. E. Gonzalez has

21

ever worked at that facility.” (Id.). Accordingly, the Court issued an order to show cause,

22

ordering Plaintiff to show cause why the Court should not dismiss defendant Gonzalez from

23

this action, without prejudice, pursuant to Federal Rule of Civil Procedure 4(m). (ECF No. 15).

24

On May 15, 2017, Plaintiff filed his response. (ECF No. 21). Plaintiff states that he

25

was informed that Lieutenant Gonzalez was a ranking official of administrative segregation on

26

or about February of 2015, that Plaintiff was interviewed by someone who identified himself as

27

Lieutenant Gonzalez on July 30, 2015, and that Lieutenant Gonzalez works at Corcoran.

28
1

1

Plaintiff also states that the litigation office at Corcoran should identify the lieutenant who had

2

the position of correctional lieutenant during the period of February 19, 2015.

3

Given Plaintiff’s response, the Court will discharge the order to show cause.

4

Additionally, in the interest of preserving resources and maximizing efficiency, and to avoid a

5

formal discovery request, the Court will first request that the Office of the Attorney General

6

provide the name and an address for service for the defendant currently identified as Lieutenant

7

Gonzalez.

8

In the event that the Office of the Attorney General does not provide sufficient

9

information, the Court may allow Plaintiff to conduct early discovery so that he can request all

10

documents regarding defendant Gonzalez’s contact information, as well as all documents

11

identifying the person (or people) who had the position of correctional lieutenant on February

12

19, 2015, on the date of Plaintiff’s institutional classification committee, and on the date of

13

Plaintiff’s release from 3A administrative segregation (the Court recognizes that such discovery

14

may pose privacy issues, which would necessitate in camera review or sealing of documents).

15

Therefore, the Court REQUESTS that, within twenty-one (21) days from the date of

16

service of this order, the Office of the Attorney General respond with the address for service for

17

defendant Gonzalez, or the identity and an address for service for the person (or people) who

18

had the position of correctional lieutenant on February 19, 2015, on the date of Plaintiff’s

19

institutional classification committee, and on the date of Plaintiff’s release from 3A

20

administrative segregation.1 Alternatively, the Office of the Attorney General may file a

21

statement that it chooses not to provide such information.2

22

Additionally, based on the foregoing, IT IS HEREBY ORDERED THAT:

23

1. The order for Plaintiff to show cause why the Court should not dismiss

24

defendant Gonzalez from this action, without prejudice, pursuant to Federal

25
26
27
28

1

If the Office of the Attorney General has concerns about providing an address (or addresses)
for the defendant identified as Lieutenant Gonzalez, it may submit that information in camera or under seal such
that the Court can issue relevant summonses.
2
No sanctions will result from a failure to abide by this informal request, but note that the Court
may open document discovery as discussed above.
2

1

Rule of Civil Procedure 4(m) (ECF No. 15) is DISCHARGED; and

2

2. The Clerk of Court is directed to serve Supervising Deputy Attorney General

3

Monica Anderson with a copy of this order.

4
5
6

IT IS SO ORDERED.
Dated:

May 17, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3