Henry Puckett v. G Amaya et al

Filing 15

ORDER TO SHOW CAUSE RE FAILURE TO RETURN SERVICE OF PROCESS FORMS by Magistrate Judge Andrew J. Wistrich. Response to Order to Show Cause due by 12/8/2015. See document for details. (yb)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. EDCV 14-717 MWF (AJW)

Date: November 17, 2015

Title: Henry Puckett v. G. Amaya, et al.
================================================
PRESENT:

HON.

ANDREW J. WISTRICH, MAGISTRATE JUDGE

Ysela Benavides
Deputy Clerk
ATTORNEYS PRESENT FOR PLAINTIFFS:
None Present

Court Reporter
ATTORNEYS PRESENT FOR DEFENDANTS:
None Present

Order to Show Cause re Failure to Return Service of Process Forms
Plaintiff filed a civil rights complaint pro se and in forma pauperis (“IFP”) on September 25, 2014. An order
for service of process by the United States Marshal (“USM”) was filed on January 5, 2015. Pursuant to the
procedures utilized by the Clerk of Court in such cases, a packet containing service of process forms (USM
Form 285) was mailed to plaintiff to be completed and returned. The USM has advised the court that it has
not received service of process from plaintiff.
If a defendant is not served within 120 days after the complaint is filed, the court “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.” Fed. R. Civ. P. 4(m). A plaintiff proceeding pro se and IFP “is entitled to rely on the U.S. Marshal
for service of the summons and complaint. Puett v. Blandford, 912 F.2d 270, 275 (9th Cir.1990). “So long
as the [plaintiff] has furnished the information necessary to identify the defendant, the marshal's failure to
effect service is ‘automatically good cause’” for extension of the 120-day period under Rule 4(m). Walker
v. Sumner, 14 F.3d 1415, 1422 (9th Cir.1994) (quoting Sellers v. United States, 902 F.2d 598, 603 (7th
Cir.1990)), abrogated in part on other grounds, Sandin v. Conner, 515 U.S. 472 (1995)).
When advised of a problem in accomplishing service, a pro se litigant proceeding in forma pauperis must
“attempt to remedy any apparent service defects of which [the plaintiff] has knowledge.” Puett, 912 F.2d at
274-275 (quoting and citing with approval Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir.1987)). If service
cannot be accomplished due to the pro se plaintiff’s “neglect” or “fault,” such as failing to provide sufficient
information to identify or locate the defendant, and the plaintiff fails to remedy the situation after being put
on notice, dismissal is appropriate. See Walker, 14 F.3d at 1421-1422 (holding that a prisoner failed to show
cause why his claims against a prison official should not be dismissed under Rule 4(m) where the prisoner
failed to show “that he provided the marshal with sufficient information to serve [the defendant]”); Puett, 912
F.2d at 276 (vacating dismissal under Rule 4(m) and remanding for proper service by the U.S. Marshal where
the record revealed that the lack of timely service “was certainly not due to [the plaintiff’s] neglect” because
“[h]e conscientiously took numerous steps to ensure that the defendants would be served”).
Plaintiff is directed to show cause, if any there be, for his apparent failure to complete and return service of
process forms to the USM. Plaintiff may do so by filing a declaration under penalty of perjury within
twenty-one (21) days of the date of this order. Plaintiff is cautioned that failure to respond to this order
within the time allowed, or failure to show good cause as described in this order, may lead to the
dismissal of this action.
IT IS SO ORDERED.
cc:
Parties

CIVIL MINUTES - GENERAL

Page 1 of 1