Oliver v. Metro Transit

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MILO L. OLIVER, Case No.: 25-cv-2932-AJB-VET 12 ORDER: Petitioner, 13 (1) DENYING AS MOOT MOTION TO v. 14 PROCEED IN FORMA PAUPERIS METRO TRANSIT, et al., (Doc. No. 4); 15 16 Respondents. (2) TO SHOW CAUSE WHY THE DEFAULT SHOULD NOT BE 17 ENTERED METRO TRANSIT AND 18 ALPHA PROJECT; 19 (3) TO SHOW CAUSE WHY 20 DEFENDANT HUMANE SOCIETY SHOULD NOT BE DISMISSED FOR 21 FAILURE TO PROSECUTE 22 23 I. MOTION TO PROCEED IN FORMA PAUPERIS 24 On October 27, 2025, Plaintiff Milo Oliver, a prisoner proceeding pro se, filed a 25 complaint against San Diego Metropolitan Transit System (“MTS”), the Alpha Project, and 26 San Diego Humane Society. (Doc. No. 1.) Plaintiff filed a motion to proceed in forma 27 pauperis (“IFP”) on November 21, 2025. (Doc. No. 3.) The Court denied Plaintiff’s IFP 28 application because the application did not contain a trust fund account statement. See 1 Andrews v. King, 398 F.3d 1113, 1119 (“[P]risoners must demonstrate that they are not 2 able to pay the filing fee with an affidavit and submission of their prison trust account 3 records.”) (citing 28 U.S.C. § 1915(a)(1)&(2)). On December 4, 2025, Plaintiff filed a 4 second IFP application. (Doc. No. 4.) However, on December 14, 2025, Plaintiff opted to 5 pay the $405 civil filing and administrative fee in full. (Doc. No. 5.) Accordingly, 6 Plaintiff’s Motion to proceed in forma pauperis is DENIED AS MOOT. (Doc. No. 4.) 7 II. ORDER TO SHOW CAUSE - DEFENDANTS MTS AND ALPHA PROJECT 8 Once Plaintiff paid the civil filing fee, the summons was issued that same day. (Doc. 9 No. 6.) It appears that Defendants MTS and Alpha Project were properly served on 10 January 26, 2026.1 (Doc. Nos. 8; 9.) More than twenty-one (21) days have passed since 11 MTS and Alpha Project were served, and neither have appeared in this action or otherwise 12 responded to the Complaint. Accordingly, the Court ORDERS Defendants MTS and 13 Alpha Project TO SHOW CAUSE why default should not be entered against them. See 14 Fed. R. Civ. Proc. 55(a); see also Breuer Elec. Mfg. Co. v. Toronado Sys. of Am., Inc., 687 15 F.2d 182, 185 (7th Cir. 1982) (Although Federal Rule of Civil Procedure 55(a) “refers to 16 entry of default by the clerk, it is well-established that a default also may be entered by the 17 court.”). Defendants MTS and Alpha Project must respond in writing by no later than 18 June 2, 2026. 19 III. ORDER TO SHOW CAUSE – DEFENDANT HUMANE SOCIETY 20 As it relates to Defendant Humane Society, it appears that Plaintiff has not properly 21 served this defendant. Federal Rule of Civil Procedure 4 provides, in relevant part: “If a 22 defendant is not served within 90 days after the complaint is filed, the court—on motion 23 or on its own after notice to the plaintiff—must dismiss the action without prejudice against 24 that defendant or order that service be made within a specified time. But if the plaintiff 25 shows good cause for the failure, the court must extend the time for service for an 26 27 1 Plaintiff also filed a proof of service as to the County of San Diego. (Doc. No. 7.) However, the County 28 1 || appropriate period.” Fed. R. Civ. P. 4(m) (emphasis added). Civil Local Rule 4.1 provides 2 || that “[a]ll complaints must be served within ninety (90) days. Any extension will be granted 3 ||} only upon good cause shown.” CivLR 4.1.a. 4 Here, over 90 days have elapsed since Plaintiff filed his Complaint. Because Plaintiff 5 failed to file a proof of service as to Defendant Humane Society within 90 days, the 6 || Court ORDERS Plaintiff to SHOW CAUSE in writing why the Humane Society should 7 be dismissed from this action for failure to effect service pursuant to Rule 4(m) and the 8 ||Local Rules. Plaintiff must file a response by no later than June 2, 2026. Plaintiff is 9 || cautioned that a failure to adequately respond to this Order within the time provided will 10 result in the Court dismissing the Humane Society from this action without prejudice. 11 CONCLUSION 12 Based on the foregoing, the Court ORDERS as follows: 13 1. Plaintiffs’ Motion to Proceed Jn Forma Pauperis is DENIED as MOOT 14 (Doc. No. 4.); 15 2. Defendants MTS and Alpha Project must file a written response to this Order, 16 |/by no later than June 2, 2026, demonstrating good cause for why default should enter 17 || against them; 18 3. Plaintiff must file a written response to this Order, by no later than 19 || June 2, 2026, demonstrating good cause for why Defendant Human Society should not be 20 || dismissed from this action. 21 IT IS SO ORDERED. 22 Dated: May 4, 2026 © 23 Hon. Anthony J. attaglia 24 United States District Judge 25 26 27 28