United States District Court, N.D. California
ORDER DIRECTING PLAINTIFF TO PROVIDE LOCATION OF
UNSERVED DEFENDANT ERIC TRIOLO AND ORDER ON MOTION TO STAY
RE: DKT. NO. 24
MWOODS. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
Thomas Jefferson Cares, proceeding in forma
pauperis, filed this civil action in December 2018
against Defendants Eric Triolo, Kelly Burbank, Paul Gilles,
the County of San Benito, Darren Thompson, Gregory LaForge,
Mitt French, and Patrick Palacios. Dkt. No. 1
(“Compl.”). The only remaining Defendants are
Defendants Triolo, Burbank, and Gilles. This order
addresses (1) service on Defendant Triolo and (2)
Plaintiff's pending motion to stay.
UNSERVED DEFENDANT ERIC TRIOLO
Burbank and Gilles have been served. However, the Marshal was
unable to serve Defendant Triolo because he appears to have
changed residences. See Dkt. No. 18. Although a
plaintiff who is proceeding in forma pauperis may
rely on service by the Marshal, such plaintiff “may not
remain silent and do nothing to effectuate such
service”; rather, “[a]t a minimum, a plaintiff
should request service upon the appropriate defendant and
attempt to remedy any apparent defects of which [he] has
knowledge.” Rochon v. Dawson, 828 F.2d 1107,
1110 (5th Cir. 1987). Absent a showing of “good cause,
” a complaint pending for over 120 days is subject to
dismissal without prejudice. See Fed. R. Civ. P.
appears that Plaintiff has not provided sufficient
information to allow the Marshal to locate and serve
Defendant Triolo. Consequently, Plaintiff must remedy the
situation or face dismissal of his claims against Defendant
Triolo without prejudice. See Walker v. Sumner, 14
F.3d 1415, 1421-22 (9th Cir. 1994) overruled on other
grounds by Sandin v. Conner, 515 U.S. 472, 483-84 (1995)
(holding prisoner failed to show cause why prison official
should not be dismissed under Rule 4(m) where prisoner failed
to show he had provided Marshal with sufficient information
to effectuate service). Accordingly, within sixty (60) days
of the date this order, Plaintiff must effect service on
Defendant Triolo, or submit to the Court sufficient
information to locate Defendant Triolo such that the Marshal
is able to effect service. Failure to do so will result in
dismissal of Defendant Triolo without prejudice pursuant to
Rule 4(m) of the Federal Rules of Civil Procedure.
MOTION TO STAY
filed a motion to stay the case pending resolution of his
criminal case. Dkt. No. 24. Defendants Burbank and Gilles do
not oppose the stay. Dkt. No. 25. Under Heck v.
Humphrey, Plaintiff's ongoing criminal case could
impact the Court's ability to hear this civil case, and
thus the Court finds that a limited stay is warranted.
See 512 U.S. 477, 487 n.8 (1994) (“if a state
criminal defendant brings a federal civil-rights lawsuit
during the pendency of his criminal trial, appeal, or state
habeas action, abstention may be an appropriate response to
the parallel state-court proceedings”). The Supreme
Court has held that “[i]f a plaintiff files a
false-arrest claim before he has been convicted (or files any
other claim related to rulings that will likely be made in a
pending or anticipated criminal trial), it is within the
power of the district court, and in accord with common
practice, to stay the civil action until the criminal case or
the likelihood of a criminal case is ended.”
Wallace v. Kato, 549 U.S. 384, 393-94 (2007).
“If the plaintiff is ultimately convicted, and if the
stayed civil suit would impugn that conviction, Heck
will require dismissal; otherwise, the civil action will
proceed, absent some other bar to suit.” Id.
Plaintiff's claims are related to the criminal case.
Plaintiff brings claims of (1) violation of federal civil
rights, 42 U.S.C. § 1983); (2) violation of state civil
rights, Cal. Civ. Code § 52.1; (3) false arrest; (4)
intentional infliction of emotional distress; and (5)
negligent infliction of emotional distress. Compl. at 1.
These claims arise from the same set of events as his
criminal case, in which he is charged with residential
burglary. See generally Compl.; see also
id. ¶¶ 8, 14 (Plaintiff alleging that
Defendant Burbank and Gilles fabricated a police report to
find probable cause for the residential burglary charge).
Therefore, a stay pending the resolution of Plaintiff's
criminal case is appropriate.
Court recognizes that a stay pending resolution of the
criminal case may indefinitely stall this case and unduly
delay efficient resolution. Plaintiff's criminal case has
been pending since 2017, and it is unclear when it will
conclude. See Dkt. No. 24-1. Materials Plaintiff
submitted in this case reflect the District Attorney's
view that Plaintiff has been responsible for the delays in
that case. Id. At the case management conference on
June 25, 2019, Plaintiff represented that his criminal case
was no longer “on calendar” because he had missed
previous hearings. Although Plaintiff said that he is trying
to “get it back on calendar, ” the Court has no
confidence about when the criminal case will be resolved. The
Court will not allow the pendency of the criminal case to
delay resolution of this case without end. Therefore, the
Court orders that this case is stayed ninety (90) days from
the date of this order or until resolution of the criminal
case, whichever occurs first. If there is a resolution before
the ninety day period, the parties are ordered to file a
joint status report within seven days of judgment. If the
criminal case has not been resolved by then, the parties are
directed to file a joint status report updating the Court on
the status of the criminal case.
reasons set forth above, the Court orders as follows:
Within sixty (60) days of the date this order is filed,
Plaintiff must effect service on Defendant Triolo, or submit
to the Court sufficient information to locate Defendant
Triolo such that the Marshal is able to effect service.
case is stayed for ninety (90) days or until resolution of
Plaintiff s criminal case, whichever occurs first. The
parties are directed to provide the Court with a joint status
report within seven days of ...