Johnson v. Juvera et al

Filing 169

ORDER that the Eighth Amendment claim against Jackson is dismissed without prejudice and Jackson is dismissed as a Defendant. Pursuant to the Court's October 22, 2013 Order, the Clerk must enter judgment in favor of Brown, Cruz, Juvera, and Reed. The Clerk must terminate the action. Signed by Judge G Murray Snow on 12/19/13. (LSP)

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1 WO JDN 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Richard Johnson, 10 Plaintiff, 11 vs. 12 Sergeant Juvera, et al., 13 14 Defendants. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-0539-PHX-GMS (DKD) ORDER 16 Plaintiff Richard Johnson brought this civil rights action under 42 U.S.C. § 1983 17 against multiple Arizona Department of Corrections (ADC) employees (Doc. 1). On October 18 22, 2013, the Courted issued an Order granting summary judgment motions filed by 19 Defendants Brown, Cruz, Juvera, and Reed and directing Johnson to show cause why the 20 remaining Defendant—Jackson—and the claim against him should not be dismissed for 21 failure to serve (Doc. 161). 22 Johnson alleged that Jackson was deliberately indifferent to a substantial risk of harm 23 when he allowed an inmate to pass through a metal detector without any patdown after 24 setting off the alarm (Doc. 1 at 5). Johnson averred that the inmate who sounded the alarm 25 stabbed Johnson later that day (id.). 26 Johnson attempted to serve Jackson in April 2012; however, the summons was 27 returned unexecuted because the Marshal could not effect service at the ADC Lewis facility 28 without a first name (Docs. 1, 7). The Court ordered Defendants to provide Jackson’s first 1 name, which they did, along with his address under seal; however, on July 23, 2012, the 2 summons was again returned unexecuted because Jackson no longer resided at the address 3 provided (Docs. 14, 18, 20). The Court denied Johnson’s subsequent motion to unseal 4 Jackson’s last-known address (Docs. 23, 25). The docket reflects no further activity with 5 respect to Jackson. 6 Federal Rule of Civil Procedure 4(m) provides that: 7 If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 8 9 10 The Court’s Order to Show Cause provided the required notice to Johnson of possible 11 dismissal for failure to serve (Doc. 161). To date, Johnson has failed to respond to the Order 12 to Show Cause, and the time in which to do so has expired. In light of Johnson’s failure to 13 respond and to show good cause, the remaining claim against Jackson will be dismissed 14 without prejudice. See Crowley v. Bannister, 734 F.3d 967, 975 (9th Cir. 2013). 15 16 Pursuant to the Court’s prior Order addressing the summary judgment motions filed by Brown, Cruz, Juvera, and Reed, the Court herein enters judgment in their favor. 17 IT IS ORDERED: 18 (1) The Eighth Amendment claim against Jackson is dismissed without prejudice 19 pursuant to Federal Rule of Civil Procedure 4(m), and Jackson is dismissed as a Defendant. 20 (2) Pursuant to the Court’s October 22, 2013 Order, the Clerk of Court must enter 21 judgment in favor of Brown, Cruz, Juvera, and Reed. 22 (3) The Clerk of Court must terminate the action. 23 DATED this 19th day of December, 2013. 24 25 26 27 28 -2-

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