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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 11 RONALD LEE ADAMS, Case No. 2:21-cv-06903-JAK-SHK 12 Plaintiff,

ORDER WITHDRAWING

13 v. DISMISSAL OF DEFENDANTS [ECF NO. 71] AND ORDER TO 14 California Department of Corrections, et SHOW CAUSE 15 al., 16 Defendants.

17 18 I. BACKGROUND 19 On August 26, 2021, the Court received Plaintiff Ronald Lee Adams’ 20 (“Plaintiff”), proceeding pro se and in forma pauperis (“IFP”), Complaint 21 (“Complaint”) under 42 U.S.C. § 1983 (“§ 1983”), alleging violations of his civil 22 rights. Electronic Case Filing Number (“ECF No.”) 1, Compl. After several 23 rounds of screening Plaintiff’s complaints under 28 U.S.C. § 1915, on June 30, 24 2023, the Court received Plaintiff’s Third Amended Complaint (“TAC”). ECF No. 25 44, TAC. 26 On September 22, 2023, the Magistrate Judge entered a Report and 27 Recommendation (“R&R”) recommending dismissal of certain defendants from 1 No. 49, R&R. On October 19, 2023, the Court accepted the R&R, ECF No. 52, 2 and on October 23, issued the summons (“Summons”) to Defendants, ECF No. 54. 3 On December 13, 2023, Defendants J. Gastelo, Howard E. Moseley, J. 4 Lewis, S. Quirarte, E. Scotland, B. Thompson, and K. Valaau (“Served 5 Defendants”) filed a Waiver of Service. ECF No. 57, Waiver of Service. The 6 California Department of Corrections and Rehabilitation (the “CDCR”) informed 7 the Court that Defendants V. Catalina and P. Dessenberger (“Unserved 8 Defendants”) could not be identified and, consequently, have not been served with 9 the TAC or appeared in this matter. On January 16, 2024, the Served Defendants 10 filed an Answer. ECF No. 61, Answer. 11 On February 1, 2024, the Court issued an Order to Show Cause (“First 12 OSC”) as to why Defendants V. Catalina and P. Dessenberger should not be 13 dismissed from this matter due to the Court’s lack of personal jurisdiction over 14 them as Unserved Defendants. ECF No. 65, First OSC. On February 16, 2024, the 15 Court received Plaintiff’s response to the OSC (“First OSC Response”), providing 16 documents from the CDCR which indicated that the Unserved Defendants worked 17 at CDCR at the time of the events underlying Plaintiffs’ claims. ECF No. 67, First 18 OSC Response. 19 On February 28, 2024, the Court issued a second OSC (“Second OSC”), 20 instructing Plaintiff to issue third party subpoenas to assist in identifying the 21 Unserved Defendants and request service of the subpoenas by U.S. Marshal 22 Service (“USMS”) by March 29, 2024, and provided Plaintiff with the necessary 23 forms to do so. ECF No. 69, Second OSC at 3. 24 On April 4, 2024, the Court issued a final OSC (“Final OSC”) because the 25 Court had not received a response from Plaintiff to the Second OSC. ECF No. 70, 26 Final OSC at 3. The Court once again instructed Plaintiff to issue a third party 27 subpoena and request USMS by May 3, 2024, and cautioned Plaintiff that “failure 1 United States District Judge that Defendants V. Catalina and P. Dessenberger 2 be dismissed from this action without prejudice[.]” Id. (emphasis in the 3 original). 4 Receiving no response from Plaintiff, on May 20, 2024, the Court dismissed 5 the Unserved Defendants from this matter. ECF No. 71, Order Dismissing 6 Defendants V. Catalina and P. Dessenberger (“Order Dismissing Unserved 7 Defendants”). 8 On May 28, 2024, the Court received Plaintiff’s “Motion for the Court to 9 Order for the [U.S. Marshal] to Serve Third Party Subpoena” (“USMS Request”), 10 in which Plaintiff states “[t]he U.S. Marshal Service fail[ed] to serve to Plaintiff[’s] 11 subpoena[s] to the [CDCR] and Rehabilitation Director Ron Broomfield, on the 12 grounds that Plaintiff does not have a correct address for the [CDCR].”1 ECF No. 13 72, USMS Request at 1-2. Plaintiff requested that the Court “provide an address to 14 the [USMS] in order to have the Defendant[s] serve[d].” Id. at 2. Plaintiff 15 attached two form AO 88B subpoenas and USM-285 forms to request USMS, each 16 dated May 2024. Id. at 3-9, 11-24. 17 On June 3, 2024, Plaintiff filed an objection to the Order Dismissing the 18 Unserved Defendants (“Objection”). ECF No. 73, Obj. In the Objection, Plaintiff 19 attached a “declaration by Plaintiff to the Court on April 15, 2024” (“April 15 20 Declaration”), in which Plaintiff stated: 21 Plaintiff comes before this [C]ourt requesting clarification as to what happen to Plaintiff first file [sic] third party subpoena send [sic] to this [C]ourt in 22 March 2024 . . . Plaintiff follow[ed] this instruct[ions] [from the Second 23 OSC,] where did the file [sic] subpoena go? Explain. 24 Id. at Exhibit (“Exh.”) B. Plaintiff also attached two AO 88B subpoena forms and 25 USM-285 forms for USMS that were filled out by Plaintiff and dated April 15, 26 2024. Id. at Exh. E. The Court notes that the April 15 Declaration, subpoenas, and 27 1 USM-285 forms do not appear to be on the docket, and thus, it is unclear whether 2 Plaintiff filed these forms with the Court on April 15, 2024, or some other date. 3 Plaintiff also attached to the Objection a “document from the [U.S. 4 Marshal][,]” dated April 30, 2024, in which the U.S. Marshal rejected Plaintiff’s 5 subpoenas because it could not “serve at [an] ‘unknown’ address” and there was 6 “no court order for USMS to serve.” Id. at Exh. D. 7 II. LEGAL STANDARD 8 Federal Rule of Civil Procedure (“Rule”) 54(b) provides the following:

9 When an action presents more than one claim for relief—whether as a claim, 10 counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, 11 but fewer than all, claims or parties only if the court determines that there is 12 no just reason for delay. Otherwise, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights 13 and liabilities of fewer than all the parties does not end the action as to any 14 of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities. 15

16 Fed. R. Civ. P. 54(b). 17 III. DISCUSSION 18 Here, the Court finds it appropriate to withdraw the dismissal of the 19 Unserved Defendants considering the facts presented by Plaintiff in his Objection. 20 It appears that Plaintiff attempted to serve the third-party subpoenas to CDCR in 21 March 2024, as he alleges in the April 15, 2024 Declaration. See ECF No. 73, 22 Obj. at Exh. B. It also appears that Plaintiff attempted to serve the third-party 23 subpoenas and USMS forms in response to the Final OSC in April 2024 as 24 evidenced by the U.S. Marshals response to Plaintiff’s subpoenas. See id. at Exhs. 25 D, E. Although it is unclear why the Court did not receive the March 2024 26 subpoenas, Plaintiffs’ April 15, 2024 Declaration, or April 2024 subpoenas and 27 USMS forms, the Court finds that Plaintiff has been diligently attempting to 1 | Order Dismissing Unserved Defendants is hereby WITHDRAWN, and V. 2 | Catalina and P. Dessenberger shall be reinstated as Defendants in this matter. 3 Additionally, the Court ORDERS counsel of record for the Served 4 | Defendants to submit a declaration with supporting documentation addressing the 5 | steps that Served Defendants’ counsel has taken to identify V. Catalina and P. 6 | Dessenberger. Billman v. Indiana Dep’t of Corr., 56 F.3d 785, 790 (7th Cir. 1995) 7 | (noting that a “prisoner... may not be in [the] best position to identify the proper 8 | defendants[,]” and as such, “it is the duty of the district court to assist him, within 9 | reason, to make the necessary investigation.”), Counsel shall submit their 10 | declaration no later than 14 days from the date of this Order. 1] IV. ORDER 12 Based on the foregoing, IT IS ORDERED: (1) the Order Dismissing 13 | Unserved Defendants [ECF No. 71] is withdrawn; (2) V. Catalina and P. 14 | Dessenberger are reinstated as Defendants in this matter; and (3) counsel of record 15 | for the Served Defendants must file a declaration identifying the measures taken to 16 | identify the Unserved Defendants no later than 14 days from the date of this Order. 17 18 In | ff 19 | DATED: 06/26/2024 20 United Siates District Judge 21 22 | Presented by: 23 Bp ete 24 | HON. SHASHIH. KEWALRAMANI 95 United States Magistrate Judge 26 27 28