Niyatii Winters v. Dr. Saweris et al

Filing 81

(IN CHAMBERS) Order to Show Cause re: Service of Defendant Garcia by Magistrate Judge Douglas F. McCormick. Response to Order to Show Cause due by 1/10/2020. (See document for details.) (sbou)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
proceeding in forma pauperis must “attempt to remedy any apparent service defects of
which [he] 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 may be appropriate. See Walker, 14 F.3d at 1421-22
(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]”); see also 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”).
It is Plaintiff’s burden to provide sufficient information to enable the U.S. Marshal to
serve defendant Garcia. Plaintiff has not done so, despite being notified of the defective
service when he was served with a copy of the unexecuted process return in May 2019. He
has not requested an extension of time to serve defendant Garcia or taken any other steps to
address or remedy this service defect. Accordingly, the Court ORDERS Plaintiff to show
cause in writing by January 10, 2020, why this Court should not recommend that this action
be dismissed without prejudice as to defendant Garcia for failure to make timely service
under Rule 4(m).

CV-90 (12/02)

CIVIL MINUTES-GENERAL

Initials of Deputy Clerk: nb

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