Tyrone Wallace v. Federal Bureau of Prisons et al

Filing 111

ORDER TO SHOW CAUSE by Magistrate Judge David T Bristow. On or before November 28, 2011, plaintiff is ORDERED show good cause in writing (SEE ORDER FOR ADDITIONAL INFORMATION). (kca)

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I hereby certify that this Order was served by First Class mail
postage prepaid to Plaintiff, T. Wallace, at his most recent address
of record; Defendant's Counsel (AUSA Wilson) was served
electronically (NEF) at their E-mail address of record, in this
action on this date.
Dated: 11/1/11

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J. Holmes

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/s/

DEPUTY CLERK

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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TYRONE WALLACE,

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Plaintiff,
vs.
FEDERAL BUREAU OF
PRISONS, et al.,
Defendants.

) Case No. EDCV09-0547-GAF (DTB)
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) ORDER TO SHOW CAUSE
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On July 26, 2010, plaintiff filed his Sixth Amended Complaint (“SAC”),

19 which, after screening, the Court ordered served on August 5, 2010. Plaintiff’s
20 Notice of Submission of Documents to the United States Marshal was due on or
21 before September 4, 2010. On August 24, 2010, plaintiff filed a document entitled
22 “Motion for Computing, and Extending Time; Time for Motion Papers” (“Motion”)
23 wherein he requested additional time in which to serve the Summons and SAC. In
24 the Motion, plaintiff alleged that he had received an incomplete summons package
25 from the Clerk, and, therefore, requested that the Clerk be ordered to provide plaintiff
26 with the appropriate number of USM-285 forms, along with service of process
27 instructions. The Court granted plaintiff’s Motion, ordering the Clerk to forward a
28 duplicate service package to plaintiff with the appropriate number of USM-285 forms
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1 for service of his SAC. The Court, sua sponte, extended plaintiff’s due date for filing
2 his Notice of Submission of Documents to September 28, 2010. On September 20,
3 2011, plaintiff filed correspondence with the Court which the Court construed as a
4 request for extension of time in which to submit his service package to the United
5 States Marshal. The Court granted plaintiff’s request and his Notice of Submission
6 of Documents was thereafter due on or before October 21, 2010. Plaintiff failed to
7 file his Notice of Submission of Documents within the time allotted and, thereafter,
8 on December 3, 2010, the Court issued a Minute Order, sua sponte, extending
9 plaintiff’s time up to and including December 27, 2010, in which to file his Notice
10 of Submission of Documents. Plaintiff was advised that his if he did not file the
11 Notice of Submission of Documents on or before December 27, 2010, such failure
12 would constitute a basis for the Court to dismiss the action without prejudice for lack
13 of prosecution. On December 17, 2010, plaintiff submitted a handwritten document
14 entitled “Notice of Submission of Documents” wherein plaintiff advised the Court
15 that he had sent his original summons to the U.S. Marshal. In its December 29, 2010,
16 Minute Order, the Court advised plaintiff that it had confirmed with the U.S. Marshal
17 that they had not received plaintiff’s original summons. Therefore, the Court directed
18 the Clerk to issue an Alias Summons in this matter. The Clerk was further directed
19 to forward plaintiff the following documents: The Alias Summons; the Notice of
20 Filing Civil Rights/Bivens Complaint (Dkt. # 88); the Order Re: Service of Sixth
21 Amended Complaint (Dkt. # 89); and the Orders Directing Service of Process by the
22 United States Marsha; (Dkt. #s 90 and 91). Plaintiff was again ordered to prepare all
23 necessary USM- 285 forms and to provide the same, along with the original Alias
24 Summons and copies of the Alias Summons, to the U.S. Marshal on or before January
25 28, 2011. Plaintiff failed to file his Notice of Submission of Documents on or before
26 January 28, 2011, and also failed to show proof of service of the Alias Summons.
27 However, on April 25, 2011, the Court received Process Receipt and Return Forms
28 for defendants Robert Haro, Richard Bourn, Ms. Bosett, Charles R. Carter and
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1 Terrance L. Moore. The Summons for defendant Robert Haro was returned unserved
2 with a notation that he was now retired with no forwarding address. Defendants
3 Richard Bourn, Ms. Bosett, Charles R. Carter and Terrance L. Moore were all served
4 on December 22, 2010. Therefore, a response to the SAC by these defendants was
5 due on or before February 20, 2011. However, none of the defendants served with
6 a Summons and the SAC have appeared in this action, or filed a response to the SAC.
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Accordingly, on or before November 28, 2011, plaintiff is ORDERED to (a)

8 show good cause in writing, if any exists, why plaintiff has not proceeded to seek a
9 default judgment in this action as to the defendants who have been served with
10 process (i.e. Bourn, Bosett, Carter and Moore); and (b) show good cause in writing,
11 if any exists, why plaintiff has failed to serve the remaining defendants (i.e. Haro,
12 Rardine, Lappin, Penn and Norwood) within the requisite period of time, as the
13 failure to do so constitutes a basis to dismiss the action against such defendants
14 pursuant to Fed. R. Civ. P. 4(m). Further, plaintiff is forewarned that, if he fails to
15 show cause, or otherwise respond to this Court’s Order, the Court will construe such
16 unresponsiveness as further evidence of plaintiff’s lack of prosecution of this action,
17 and that such lack of prosecution will constitute a basis to dismiss this action in its
18 entirety.
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20 DATED: November 1, 2011

____________________________
DAVID T. BRISTOW
United States Magistrate Judge

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