Renteria v. Cuevas

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA RONALD DAVE RENTERIA, Case No.: 21-CV-1507 JLS (MSB) 12 Plaintiff, ORDER DENYING PLAINTIFF’S v. MOTION TO STAY AND DIRECTING THE CLERK OF CUEVAS, 3rd Watch Correctional COURT TO RESEND JUNE 14, 2022 Officer; BYRNES, 3rd Watch 15 ORDER AND REISSUE SUMMONS Correctional Officer; KAKO, 3rd Watch Correctional Officer; MEEKS, 2nd Watch (ECF Nos. 21, 25–26) Correctional Officer; M. GARCIA, 2nd Watch Correctional Officer; RICO, Correctional Sergeant; MS. T.

MARTINEZ, Correctional Lieutenant; and MARCUS POLLARD, Warden, Defendants.

22 Presently before the Court are Plaintiff Ronald Dave Renteria’s (“Plaintiff”) Notice of Change of Address (“Notice,” ECF No. 25) and Motion for an Order Restoring Stay (“Mot.,” ECF No. 26). The Court notes that its June 14, 2022 Order screening Plaintiff’s Complaint and directing the Clerk of the Court to issue a summons, and the summons itself, were returned as undeliverable on June 28, 2022. See ECF Nos. 23–24. The Court also notes that Plaintiff’s prior requests for a stay of these proceedings, see ECF Nos. 12, 15, were denied, see ECF Nos. 14, 17. The Court instead continued the spreading of the mandate in this matter until after the completion of Plaintiff’s postconviction relief proceeding. See ECF No. 14. The hearing date for the postconviction relief proceeding has passed and the mandate has now been spread, see ECF Nos. 19–20, with Plaintiff’s Complaint having been screened, see ECF No. 21. Accordingly, to the extent the Motion seeks to lift any stay of these proceedings, the Court DENIES AS MOOT the request, because there is no stay to lift. To the extent the Motion seeks to institute a stay, Plaintiff has presented no reasons justifying a stay of these proceedings in light of the posture of this case, and the Court DENIES the request.

9 Further, given Plaintiff’s Notice and his failure to receive the June 14, 2022 Order and summons, the Court DIRECTS the Clerk of the Court to resend the June 14, 2022 Order (ECF No. 21) to Plaintiff at his new address of record. The Court further DIRECTS the Clerk of Court to reissue the summons.

13 As the Court noted in the June 14, 2022 Order, 14 Because Plaintiff is not proceeding IFP pursuant to 28 U.S.C. § 1915, he remains “responsible for having the summons and complaint served within the time allowed by Rule 4(m)” now that 16 his pleading has survived the sua sponte screening required by U.S.C. § 1915A. See Fed. R. Civ. P. 4(c)(1). The Court has tolled Rule 4(m)’s time limit for service while conducting its 18 screening. See Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1204 n.8 (9th Cir. 2014) (noting that “[o]ther federal circuit courts of appeals have held that the [90]–day service 20 period is tolled until the court screens a plaintiff’s in forma pauperis complaint and authorizes service of process”) (citing Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010); Urrutia 22 v. Harrisburg Cty. Police Dep’t, 91 F.3d 451, 459 (3d Cir. 1996)).

24 ECF No. 21 at 10 n.5. Accordingly, Plaintiff must (1) personally serve Defendants within 90 days of the date of this Order and file proof of that service pursuant to Federal Rule of Civil Procedure 4(l) or (2) procure a waiver of personal service as to each of the named Defendants pursuant to Federal Rule of Civil Procedure 4(d) within 90 days of the date of this Order, or Plaintiff will face dismissal without prejudice based on his failure to || prosecute pursuant to Federal Rule of Civil Procedure 4(m).

2 IT IS SO ORDERED.

3 || Dated: June 30, 2022 nie tt f te 4 on. Janis L. Sammartino 5 United States District Judge 1]