Rogers v. Warden

Filing 35

ORDER VACATING 28 Order to Show Cause; Sixty-Day Deadline signed by Magistrate Judge Jennifer L. Thurston on 10/14/2020. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PHILIP JAMES ROGERS, 12 Plaintiff, 13 14 CASE NO. 1:18-cv-0846 NONE JLT (PC) ORDER VACATING ORDER TO SHOW CAUSE v. (Doc. 28) RODRIGUEZ, et al., 15 SIXTY-DAY DEADLINE Defendants. 16 17 Plaintiff is proceeding in this action against Kern Valley State Prison Sergeant Benecourt 18 and Correctional Officer Rodriguez on an Eighth Amendment claim stemming from an incident 19 that occurred in the KVSP kitchen on June 22, 2017. Sergeant Benecourt has now been served 20 and appeared in this action. Additionally, the Court recently issued the Discovery and Scheduling 21 Order. (Doc. 32.) As for defendant Rodriguez, the summons directed to this defendant was 22 returned unexecuted on April 17, 2020, because, per the KVSP Litigation Coordinator, “there was 23 no ‘officer Rodriguez working that area on the day stated in his complaint.’ They will not accept 24 service.” (Doc. 23.) 25 Due to the failure to serve this defendant within the time prescribed by Federal Rule of 26 Civil Procedure 4(m), plaintiff was directed to show cause why defendant Rodriguez should not 27 be dismissed. (Doc. 28.) In his response to the order to show cause, plaintiff states that he 28 1 1 mistakenly misidentified the defendant Rodriguez as a correctional officer and seeks additional 2 time to conduct discovery to properly identify this defendant. (Doc. 34.) If plaintiff establishes 3 good cause for the failure to effectuate timely service, the Court is required to extend the time for 4 service. Fed. R. Civ. P. 4(m). Therefore, good cause appearing, the Court ORDERS as follows: 5 1. The order to show cause (Doc. 28) is VACATED; 6 2. Plaintiff is granted an additional 60 days from the date of this Order to identify 7 defendant Rodriguez using traditional discovery methods. Once he has ascertained the 8 identify of this defendant, he may then move to amend his pleading. Once amended, 9 the Court will direct the United States Marshal to re-serve this defendant. 10 11 12 IT IS SO ORDERED. Dated: October 14, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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