Paul Milton Davis Jr. v. San Bernardino Sheriff Department

• Court: District Court, C.D. California
• Decided: February 27, 2023
• Docket: 5:21-cv-01941
• Status: Unknown

Opinion

Case 5:21-cv-01941-JFW-JC Document 24 Filed 02/27/23 Pagelof2 Page |ID#:154 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 5:21-cv-01941-JFW-JC Date February 27, 2023 Title Paul Milton Davis Jr. v. San Bernardino Sheriff Department, et al.

Present: The Honorable Jacqueline Chooljian, United States Magistrate Judge Kerri Hays None None Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiff: Attorneys Present for Defendants: none none Proceedings: (IN CHAMBERS) ORDER DIRECTING PLAINTIFF TO SHOW CAUSE WHY DEFENDANTS NUNEZ, MARTINEZ AND CYPRESS SHOULD NOT BE DISMISSED OR TO PROVIDE ACCURATE/SUFFICIENT SERVICE INFORMATION On March 2, 2022, Plaintiff Paul Milton Davis, Jr., a state prisoner who is proceeding pro se and has been granted leave to proceed in forma pauperis (“IFP”), filed the operative First Amended Civil Rights Complaint pursuant to 42 U.S.C. § 1983 against the following four San Bernardino County Sheriff's Department (“SBSD”) Deputies/Sergeant who assertedly were on duty at the West Valley Detention Center (“WVDC”) where Plaintiff was housed in July/August 2021: Deputies W. Villarino, Nunez, and Martinez, and Sergeant Cypress. (Docket No. 10). On July 8, 2022, the Court issued an Order Re: Service of Process by U.S. Marshal directing Plaintiff to complete and to return to the Clerk of the Court, a USM-285 form for each such Defendant, supplying, among other things, a complete street address where each Defendant could be served. (Docket No. 12). Plaintiff thereafter returned USM-285 forms for the foregoing Defendants which reflect that each such Defendant’s address is at WVDC, 9500 Etiwanda Avenue, Rancho Cucamonga, California 91739. (Docket No. 16). However, the United States Marshal’s Service (“USMS”) has been unable to effect service upon Defendants Nunez, Martinez and Cypress because an SBSD representative advised: (1) “there are multiple Nunez that work for SBSD, thus need a first name/badge # to properly identify”; (2) as to Deputy Martinez, “there are multiple Martinez that work for SBSD, thus need a first name/badge # to properly identify”; and (3) as to Sergeant Cypress, “there is no one with the last name of Cypress that works for SBSD.” (Docket Nos. 20-22).' An incarcerated pro se plaintiff, proceeding IFP is entitled to rely on the USMS for service and should not be penalized by having his action dismissed for failure to effect service where the USMS has failed to perform its duties. Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). Nevertheless, a plaintiff relying upon the USMS for service must provide the necessary information to effectuate service. Id. Where a pro se plaintiff fails to provide the USMS with accurate and sufficient information

'Defendant Villarino has been served and has appeared in this action. (Docket Nos. 19, 23). CV-90 (06/04) CIVIL MINUTES - GENERAL Page | of 2

Case 5:21-cv-01941-JFW-JC Document 24 Filed 02/27/23 Page2of2 Page □□ #:155 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 5:21-cv-01941-JFW-JC Date February 27, 2023 Title Paul Milton Davis Jr. v. San Bernardino Sheriff Department, et al. to effect service of the summons and complaint, a court may dismiss the unserved defendant sua sponte. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). Here, Plaintiff has not done so as to Defendants Nunez, Martinez, and Cypress. IT IS THEREFORE ORDERED that no later than March 20, 2023, Plaintiff shall either (1) show good cause in writing, if any exists, why this case should not be dismissed as against Defendants Nunez, Martinez, and Cypress based on Plaintiff's failure to provide accurate and sufficient information to enable the USMS to effect service of the summons and operative First Amended Complaint upon such Defendants; or (2) supply the Court with information sufficient to effect service upon such Defendants. Plaintiff is cautioned that the failure to comply with this Order, and/or to show good cause or to provide sufficient information to effect service upon Defendants Nunez, Martinez and Cypress may result in the dismissal of this action as against such Defendants for failure to comply with the Court’s Order, failure to provide accurate and sufficient information to effect service of the summons and operative First Amended Complaint upon such Defendants, and/or failure to prosecute such Defendants. IT IS SO ORDERED.

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