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)

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-