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Thompson v. Reynoso

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 8, 2009

JAMES L. THOMPSON, PLAINTIFF,
v.
F. REYNOSO, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DISCHARGING COURT'S ORDER TO SHOW CAUSE (Doc. 45.) ORDER FINDING RE-SERVICE OF PROCESS UPON DEFENDANT SGT. REYNOSO APPROPRIATE ORDER FOR CLERK TO FORWARD SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN THIRTY DAYS

James L. Thompson ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on December 27, 2004. (Doc. 1.) On July 24, 2006, plaintiff filed an amended complaint, upon which this action now proceeds. (Doc. 16.)

On December 1, 2008, the Court issued an order to show cause, requiring plaintiff to show cause within thirty days why defendant Sgt. Reynoso should not be dismissed from this action, in light of the fact that the United States Marshal was unable to execute service upon Sgt. Reynoso due to information from the California Department of Corrections ("CDC") that Sgt. Reynoso was not an employee and his name did not appear on the CDC's database. (Doc. 45.)

On December 30, 2008, plaintiff filed a written response to the Court's order to show cause. (Doc. 46.)

Plaintiff argues that defendant Reynoso should not be dismissed from this action because Reynoso is an employee of the CDC, and the CDC should be able to locate him for service. Plaintiff claims that Frank Reynoso, who is the same person as Sgt. Reynoso, was successfully served at Corcoran State Prison by the United States Marshal in plaintiff's prior action, case 1:04-cv-06554-SMS-P Thompson v. Morales. Plaintiff submits evidence that Frank Reynoso testified at trial in this court on April 22, 2008, as a defendant in plaintiff's prior case. (Pltf's Response, Doc. 46, Exh A.)

Plaintiff's argument has merit. A review of the Court's record shows that defendant Frank Reynoso was successfully served with process at Corcoran State Prison by the Marshal in plaintiff's prior case. On August 8, 2005, the Marshal filed a return of executed service and a waiver of service of summons for Sgt. F. Reynoso, and on August 17, 2005, Reynoso filed an answer to the complaint. (Court Record for case 1:04-cv-06554, Docs. 33 & 34.) In addition, the Court's record shows that Frank Reynoso testified at trial at this court on April 22, 2008. (Id., Docs. 109 & 110.) In light of this evidence, the Court finds that re-service of process upon defendant Reynoso is appropriate.

Accordingly, IT IS HEREBY ORDERED that:

1. The court's order to show cause filed December 1, 2008, is DISCHARGED;

2. Re-service is appropriate for defendant Sgt. Frank Reynoso;

3. The Clerk of the Court shall send plaintiff one (1) USM-285 form, one (1) summons, a Notice of Submission of Documents form, an instruction sheet and a copy of the first amended complaint filed July 24, 2006 (Doc. 16.);

4. Within thirty (30) days from the date of service of this order, plaintiff shall complete the Notice of Submission of Documents form and submit the completed Notice to the court with the following documents:

a. Completed summons;

b. One completed USM-285 form for defendant Sgt. Frank Reynoso; and

c. Two (2) copies of the endorsed first amended complaint filed July 24, 2006;

5. Plaintiff need not attempt service on defendant and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment of costs; and

6. The failure to comply with this order will result in a recommendation that this action be dismissed.

IT IS SO ORDERED.

20090408

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