Jacobsen v. Maldinado

Filing 19

ORDER GRANTING 17 Plaintiff's Motion to Show Cause Why Case Should Not be Dismissed and Request for Copy of Complaint; ORDER DISCHARGING Order to Show Cause Why Defendant Maldinado Should Not be Dismissed for Failure to Prosecute; and ORDER Ex tending Show Cause Order and Directing Plaintiff to Provide Written Notice Identifying Doe Defendants for Service of Process, signed by Magistrate Judge Barbara A. McAuliffe on 9/29/2017. Clerk directed to mail one copy of the original complaint to Plaintiff. Show Cause Response due within thirty (30) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JACOBSEN, 12 13 14 Plaintiff, v. Case No. 1:17-cv-00101-BAM (PC) ORDER GRANTING PLAINTIFF’S MOTION TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED AND REQUEST FOR COPY OF COMPLAINT MALDINADO, et al., (ECF No. 17) 15 Defendants. ORDER DISCHARGING ORDER TO SHOW CAUSE WHY DEFENDANT MALDINADO SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE 16 17 18 20 ORDER EXTENDING SHOW CAUSE ORDER AND DIRECTING PLAINTIFF TO PROVIDE WRITTEN NOTICE IDENTIFYING DOE DEFENDANTS FOR SERVICE OF PROCESS 21 THIRTY (30) DAY DEADLINE 19 22 23 I. 24 Plaintiff Michael Jacobsen (“Plaintiff”) is a pretrial detainee proceeding pro se and in 25 26 Background forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 8, 2017, the Court issued a screening order finding that Plaintiff had stated a 27 cognizable claim against Defendants Maldinado, Doe #1, Doe #2, and Doe #3. The Court 28 directed Plaintiff to fill out and return the USM-285 form and summons for Defendant Maldinado 1 1 within thirty days, and to provide the Court with written notice identifying Doe Defendants with 2 enough information to locate defendants for service of process within ninety days. (ECF No. 8.) 3 The Court expressly warned Plaintiff that failure to comply with the Court’s order would result in 4 dismissal of this action. (Id. at 5.) 5 On July 10, 2017, Plaintiff filed a notice of change of address and a request for status of 6 case. (ECF No. 9.) The Court issued an order granting the request, reminding Plaintiff of his 7 pending deadlines in this action. (ECF No. 10.) This order was sent to Plaintiff’s updated address, 8 but was returned as undeliverable, return to sender, unable to forward. On July 24, 2017, pursuant 9 to a change of address filed by Plaintiff in Jacobsen v. People of the State of California, Case No. 10 1:14-cv-00108-JLT (PC), the Court issued an order directing the Clerk of the Court to re-serve 11 the order granting Plaintiff’s request for status of case to his new address. (ECF No. 12.) 12 On August 11, 2017, after Plaintiff failed to return service documents for Defendant 13 Maldinado, the Court issued an order to show cause why Defendant Maldinado should not be 14 dismissed from this action for failure to prosecute. (ECF No. 13.) Plaintiff was directed to 15 respond or return completed service documents for Defendant Maldinado within thirty (30) days. 16 (Id.) Plaintiff was expressly warned that failing to comply with the Court’s order would result in 17 dismissal of Defendant Maldinado from this action. (Id.) On August 24, 2017, Plaintiff’s address was updated, again pursuant to a notice of change 18 19 of address filed in Case No. 1:14-cv-00108-JLT (PC). (ECF No. 14.) In this filing, Plaintiff 20 asserted that although he had updated his address three times with the Court over the past two and 21 a half months, he had not received any of the Court’s orders in any of his three pending cases in 22 this district. As Plaintiff’s filing was not responsive to the Court’s August 11, 2017 order directing 23 24 Plaintiff to file completed service documents for Defendant Maldinado or to show cause why he 25 had been unable to do so, the Court declined to discharge the order to show cause and granted 26 Plaintiff a final opportunity to file completed service documents or explain why he had been 27 unable to do so. 28 /// 2 1 On September 27, 2017, Plaintiff filed a response to the show cause order and a request 2 for a copy of the complaint.1 (ECF No. 17.) Plaintiff explains that he received a copy of the 3 docket for this case, but he has not received any filings for this case for months, despite updating 4 his address multiple times. Plaintiff requests that the Court send a copy of the complaint and 5 anything with a court deadline. (Id.) 6 On September 29, 2017, the Court received service documents for Defendant Maldinado. 7 (ECF No. 18.) Plaintiff did not include two copies of the complaint, as directed by the Court’s 8 orders. (ECF Nos. 8, 13, 16.) 9 II. Defendant Maldinado In light of Plaintiff’s submission of the appropriate service documents for Defendant 10 11 Maldinado, the Court finds it appropriate to discharge the show cause order regarding Defendant 12 Maldinado. Although Plaintiff has not submitted the necessary copies of the complaint, the Court 13 will grant Plaintiff’s request for a copy of his complaint, and the Clerk of the Court is directed to 14 make three copies of the complaint—two for the U.S. Marshal Service to conduct service, and 15 one for Plaintiff. The Court will direct service on Defendant Maldinado by separate order. 16 Plaintiff is advised that generally, the Clerk’s Office will provide copies for Plaintiff at a 17 cost of $0.50 per page. The Court will make an exception in this one instance and will direct the 18 Clerk’s Office to provide copies of the original complaint at no charge. However, Plaintiff is 19 advised that any further copies will need to be paid for by Plaintiff and that it is his responsibility 20 to maintain copies of all documents submitted to the Court for filing. 21 III. Doe Defendants 22 Plaintiff’s latest submission is not responsive to the Court’s orders regarding the 23 identification of the Doe Defendants. (ECF Nos. 8, 15.) Plaintiff is reminded that the Doe 24 Defendants cannot be served by the U.S. Marshal until Plaintiff has identified them as actual 25 individuals with enough information to locate the defendants for service of process. 26 /// 27 1 28 Plaintiff requested a copy of the amended complaint. However, no amended complaint has been filed in this action. The Court therefore construes Plaintiff’s motion as a request for a copy of the original complaint, filed January 23, 2017. 3 1 Accordingly, the Court will not discharge the September 21, 2017 show cause order. The 2 Court will provide Plaintiff additional time and a final opportunity to file written notice 3 identifying Doe Defendants with enough information to identify defendants for service of 4 process, or a response stating why he is unable to do so. 5 IV. Conclusion and Order 6 Based on the foregoing, IT IS HEREBY ORDERED that: 7 1. The Court’s August 11, 2017 show cause order, (ECF No. 13), is DISCHARGED; 8 2. Plaintiff’s motion to show case should not be dismissed and request for copy of complaint, 9 10 (ECF No. 17), is GRANTED; 3. The Clerk of the Court is directed to mail one (1) copy of the original complaint, filed 11 January 23, 2017, to Plaintiff, and retain two (2) copies of the original complaint for the 12 purpose of service of process; 13 4. Within thirty (30) days from the date of service of this order, Plaintiff shall provide the 14 Court with written notice identifying Doe Defendants with enough information to locate 15 the defendants for service of process, or shall show cause in writing why Doe Defendants 16 should not be dismissed from this action for failure to prosecute; and 17 18 5. Plaintiff’s failure to comply with this order will result in dismissal of Doe Defendants from this action. 19 20 21 IT IS SO ORDERED. Dated: /s/ Barbara September 29, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 4

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