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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PHILIP JAMES ROGERS,

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Plaintiff,

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CASE NO. 1:18-cv-0846 NONE JLT (PC)
ORDER VACATING ORDER TO SHOW
CAUSE

v.

(Doc. 28)

RODRIGUEZ, et al.,

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SIXTY-DAY DEADLINE

Defendants.

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Plaintiff is proceeding in this action against Kern Valley State Prison Sergeant Benecourt

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and Correctional Officer Rodriguez on an Eighth Amendment claim stemming from an incident

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that occurred in the KVSP kitchen on June 22, 2017. Sergeant Benecourt has now been served

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and appeared in this action. Additionally, the Court recently issued the Discovery and Scheduling

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Order. (Doc. 32.) As for defendant Rodriguez, the summons directed to this defendant was

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returned unexecuted on April 17, 2020, because, per the KVSP Litigation Coordinator, “there was

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no ‘officer Rodriguez working that area on the day stated in his complaint.’ They will not accept

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service.” (Doc. 23.)

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Due to the failure to serve this defendant within the time prescribed by Federal Rule of

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Civil Procedure 4(m), plaintiff was directed to show cause why defendant Rodriguez should not

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be dismissed. (Doc. 28.) In his response to the order to show cause, plaintiff states that he

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mistakenly misidentified the defendant Rodriguez as a correctional officer and seeks additional

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time to conduct discovery to properly identify this defendant. (Doc. 34.) If plaintiff establishes

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good cause for the failure to effectuate timely service, the Court is required to extend the time for

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service. Fed. R. Civ. P. 4(m). Therefore, good cause appearing, the Court ORDERS as follows:

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1. The order to show cause (Doc. 28) is VACATED;

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2. Plaintiff is granted an additional 60 days from the date of this Order to identify

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defendant Rodriguez using traditional discovery methods. Once he has ascertained the

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identify of this defendant, he may then move to amend his pleading. Once amended,

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the Court will direct the United States Marshal to re-serve this defendant.

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IT IS SO ORDERED.
Dated:

October 14, 2020

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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