(PC) Thompson v. Gomez ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARK SHANE THOMPSON, ) Case No.: 1:18-cv-00125-LJO-SAB (PC) ) 12 Plaintiff, ) ) ORDER TO SHOW CAUSE WHY DOE 13 v. ) DEFENDANTS SHOULD NOT BE DISMISSED ) 14 A. GOMEZ, et al., ) 15 Defendants. ) ) 16 ) 17 Plaintiff Mark Shane Thompson is appearing pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 This action is proceeding against Defendants Gomez, Busby, Gray, Sazo, Weiss, and Does 1 20 and 2 for excessive force in violation of the Eighth Amendment 21 As Plaintiff was advised in the Court’s February 12, 2018, order, “[t]he Court cannot order 22 service of a Doe defendant because the United States Marshal cannot serve a Doe 23 Defendant. Therefore, before the Court orders the United States Marshal to serve a Doe Defendant, 24 Plaintiff will be required to identify him or her with enough information to locate the defendant for 25 service of process. The United States Marshal cannot initiate service of process on unknown 26 Defendants. Plaintiff will be given an opportunity through discovery to identify the unknown (Doe) 27 Defendants. Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (quoting Gillespie v. Civiletti, 28 629 E.2d 637, 642 (9th Cir. 1980)). Once the identity of a Doe Defendant is ascertained, the Plaintiff 1 || must file a motion to amend his complaint only to identify the identified Doe Defendant so that servic 2 || by the United States Marshal can be attempted. Therefore, the Court will send Plaintiff the 3 || appropriate service documents at such time that Plaintiff ascertains the identities of the Doe 4 || Defendants. However, if Plaintiff fails to identify the Doe Defendant during the course of the 5 || discovery, the Doe Defendant will be dismissed from this action.” (Order at 8, n.1, ECF No. 8.) 6 A court may dismiss a defendant, a claim or an action based on a party’s failure to prosecute < 7 || action or failure to obey a court order, or failure to comply with local rules. See, e.g., Ferdik v. 8 || Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 9 || requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987 10 || (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 11 || Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 12 In this instance, the deadline to amend the pleadings, and the discovery cut-off deadline have 13 || passed (ECF No. 47) without Plaintiff filing anything to indicate that he has ascertained the true nam« 14 || of Does 1 and 2. 15 Accordingly, IT IS HEREBY ORDERED that within twenty-one (21) days of the date of 16 || service of this order, Plaintiff shall show cause why Does 1 and 2 and all claims against him/her 17 || should not be dismissed for Plaintiff's failure to prosecute this action against Does | and 2 by 18 || identifying and substituting his/her true name in this action. The failure to comply with this order 19 || and/or or show good cause will result in the dismissal of Does 1 and 2. 20 21 ||IT IS SO ORDERED. A (ee 22 || Dated: _ December 11, 2019 OF " 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28