Jones v. Arnette, et al.

Filing 66

ORDER DISCHARGING 64 Order to Show Cause signed by Magistrate Judge Gary S. Austin on 2/4/2021. (Sant Agata, S)

Case 1:16-cv-01212-DAD-GSA Document 66 Filed 02/04/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEREMY JONES,

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Plaintiff,

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vs.

1:16-cv-01212-DAD-GSA-PC
ORDER DISCHARGING ORDER TO SHOW
CAUSE
(ECF No. 15.)

ARNETTE, et al.,

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Defendants.

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I.

BACKGROUND

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Jeremy Jones (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act

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(ADA), 42 U.S.C. § 12132.

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On June 8, 2020, the Court found that service of the Second Amended Complaint was

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appropriate in this case as to Defendants Arnette, Flores, Lopez, Zamora, Vasquez, Gonzalez,

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and Keener for violation of the Eighth Amendment, Fourteenth Amendment, and ADA.

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Electronic service was then ordered, which directed the CDCR “no later than 40 days” after

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service of the Court’s order to “file with the Court the ‘CDCR Notice of E-Service Waiver’

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advising the Court which defendant(s) . . . will be waiving service of process without the need

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for personal service by the United States Marshal.” (ECF No. 48, Order at 3:26 – 4: 1.)

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Case 1:16-cv-01212-DAD-GSA Document 66 Filed 02/04/21 Page 2 of 3

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According to the court’s record, CDCR returned Notices of E-Service Waiver for

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Defendants Gonzalez, Flores, Arnette, and Keener, and these four Defendants filed an Answer

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to the complaint on October 30, 2020. (ECF Nos. 53, 54, 57.) However, there was no record

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that CDCR had returned Notices for Defendants Lopez, Zamora, or Vasquez, and the forty-day

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time period had expired.

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On January 22, 2021, the court issued an order for CDCR to show cause why sanctions

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should not be imposed for failure to comply with the court’s June 8, 2020 order. (ECF No. 64.)

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On February 2, 2021, CDCR filed a response to the order to show cause. (ECF No. 65.)

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II.

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CDCR’S RESPONSE
CDCR responds with evidence showing that they complied with the June 8, 2020 order.

California Deputy Attorney General Janet N. Chen, by special appearance for CDCR, declares:

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On July 17, 2020, CDCR sent an email to [e-mail], with

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an attachment entitled “CDCR Notice of E-Service Waiver.” The attachment

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indicates that Defendants Arnett, Flores, and Keener intend to waive service; that

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Defendants Lopez, Zamora, and Vasquez do not intend to waive service; and that

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Defendant Gonzales requests additional time to file his notice of intent to waive

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or not waive service.

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(Chen Decl. ECF No. 65 at 3 ¶4.) CDCR submitted a copy of the email, with confidential

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information redacted. (Id., Exh. A.) The “Notice of E-Service Waiver,” which had been attached

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to the email, was not submitted by CDCR as part of their response to the order to show cause,

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due to the confidential nature of the information. (Id. at 3 ¶4.) CDCR was informed that it was

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already provided to the court with CDCR’s July 17, 2020 email. (Id.)

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Chen declares that by the same email, CDCR sent a “Request for Extension of Time to

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File CDCR Notice of E-Service Waiver” on behalf of defendant Gonzalez, which was filed as

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ECF No. 50. (Id. at ¶5.) However, the Notice of Intent to Waive or Not Waive Service on behalf

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of the remaining Defendants does not appear to have been filed. (Id.)
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Case 1:16-cv-01212-DAD-GSA Document 66 Filed 02/04/21 Page 3 of 3

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III.

DISCUSSION AND CONCLUSION

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The court has reviewed the January 27, 2020 email sent to the court by CDCR, and

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CDCR’s evidence that on July 17, 2020, CDCR provided the court with a copy of a “CDCR

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Notice of E-Service Waiver,” indicating that Defendants Arnett, Flores, and Keener intend to

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waive service; that Defendants Lopez, Zamora, and Vasquez do not intend to waive service; and

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that Defendant Gonzales requests additional time to file his notice of intent to waive or not waive

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service. CDCR’s evidence shows that they have complied with the court’s June 8, 2020 order,

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but the “CDCR Notice of E-Service” was not filed by the court on July 17, 2020, through no fault

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of CDCR. Thus, CDCR has shown that they complied with the court’s June 8, 2020 order and

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that sanctions should not be imposed. Accordingly, the court’s order to show cause shall be

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discharged.

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Therefore, IT IS HEREBY ORDERED that:

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1.

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The court’s order to show cause, issued on January 22, 2021, is DISCHARGED;
and

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The Clerk of Court shall file under seal CDCR’s Notice of E-Service Waiver as

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to Defendants Arnett, Flores, Keener, Lopez, Zamora, and Vasquez which was

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submitted to the court by CDCR via email on July 17, 2020.

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IT IS SO ORDERED.
Dated:

February 4, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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