(PC) Talavera v. Ravijot

Opinion

JOSE ALFREDO TALAVERA, Case No.: 1:23-cv-00595-JLT-CDB (PC) Plaintiff, ORDER DISCHARGING MAY 28, 2025, ORDER TO SHOW CAUSE v. (Docs. 32, 35) DR. GILL RAVIJOT, et al., Clerk of the Court to Provide Service Documents Defendants. to the United States Marshals Service

Plaintiff Jose Alfredo Talavera (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Following screening, this action proceeds as to the following claims asserted in Plaintiff’s second amended complaint (Doc. 15): (1) Eighth Amendment deliberate indifference to serious medical needs claims against Defendants Ravijot Gill, Matthew Kairis, and Lorena Rodriguez; and (2) Eighth Amendment excessive force claims against Defendants Jose Ramirez, Mark Geston, and Cruz Navarro. See (Doc. 20). On February 25, 2025, the Court entered an order finding service appropriate. (Doc. 21). The Court issued summonses that same day. (Doc. 22). On March 5, 2025, the California Department of Corrections and Rehabilitation (“CDCR”) filed a notice of intent to waive service for all Defendants. (Doc. 23). On April 3, 2025, the Office of the Attorney General of California (“OAG”) filed a request for extension of time to file waivers of service. (Doc. 24). On April 7, 2025, the Court granted the request. (Doc. 26). On the last day of the extended deadline, the OAG filed a second request for extension of time to file waivers of service, representing that it needed more time to determine whether it would be representing Defendant Gill. (Doc. 29). The Court granted the motion nunc pro tunc, extending both the time within which to file a waiver of service (to May 16, 2025) and a responsive pleading for Defendant Gill (to May 19, 2025). (Doc. 31). After both the extended deadlines for filing of the waiver of service and the responsive pleading for Defendant Gill passed without either document being filed, on May 28, 2025, the Court ordered counsel for Defendants to show cause why sanctions should not be imposed for failure to obey the Court’s orders. (Doc. 32). On May 29, 2025, the OAG filed an updated notice of intent to waive service, representing intent to waive service for all Defendants except for Defendant Gill. (Docs. 33, 34). On May 30, 2025, the OAG filed a response to the show cause order. (Doc. 35). Counsel for the OAG Colin A. Shaff represents that, although he received a request for representation from Defendant Gill, he determined that Defendant Gill is the sole plaintiff in an employment action in state court in which the CDCR is a defendant. Mr. Shaff represents that Defendant Gill’s active litigation against the CDCR constitutes a waivable conflict with informed written consent. Id. at 5 ¶¶ 3-5. Mr. Shaff further represents that he contacted Defendant Gill’s counsel numerous times in April and May 2025 by email and telephone, advising counsel of the waiver of service deadline in this action and providing a letter describing the nature of his proposed representation and requesting it be conveyed to Defendant Gill. Id. at 5-6 ¶¶ 6-7. Mr. Shaff attests that he did not receive an answer from either Defendant Gill or his counsel regarding the proposed request for representation. Mr. Shaff states that, pursuant to California Rule of Professional Responsibility 4.2, he was unable to directly contact Defendant Gill. Id. at 6 ¶¶ 8-10. He represents that, as there is a conflict of interest between the CDCR and Defendant Gill, and because Defendant Gill has not provided informed written consent to representation in this matter, he cannot represent Defendant Gill. Id. ¶¶ 11-12. Counsel states that he did not feel he was able to withdraw from representation as he did not represent Defendant Gill nor did he make a general appearance on his behalf and, as he was not possible appearance of separate counsel. Id. 4 12. The Court has considered the representations by counsel in responding to the Court’s order to show cause (Docs. 32, 35). Although counsel offers no explanation for why he allowed the May 16 and May 19 filing deadlines to pass without making any filings (such as a request for additional time or a report about his inability to timely file a service waiver), the Court concludes that counsel’s conduct cited in the show cause order is the result of excusable neglect. See In re Veritas Software Corp. Sec. Litig., 496 F.3d 962, 973 (9th Cir. 2007). Accordingly, the Court will discharge the order to show cause and direct the Clerk of the Court to provide service documents to the United States Marshals Service for service upon Defendant Gill. Conclusion and Order Accordingly, IT IS HEREBY ORDERED that: 1. The May 28, 2025, show cause order (Doc. 32) is DISCHARGED; and 2. The Clerk of the Court is DIRECTED to provide the United States Marshal with a copy of the second amended complaint (Doc. 15), the findings and recommendations (Doc. 18) and order adopting (Doc. 20), the Court’s order finding service appropriate (Doc. 21), and the summons (Doc. 22) for service upon Defendant Ravijot Gill pursuant to the provisions set forth in the order finding service appropriate. IT IS SO ORDERED. | Dated: _ June 2, 2025 | hr UNITED STATES MAGISTRATE JUDGE