Lee v. Scribner et al

Filing 47

ORDER Requiring Plaintiff to SHOW CAUSE Why This Action Should Not be Dismissed, signed by Magistrate Judge Sandra M. Snyder on 4/21/11. 30-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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BOBBY LEE,

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CASE NO. 1:05-cv-00802-SMS PC
Plaintiff,

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v.

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ORDER REQUIRING PLAINTIFF TO SHOW
CAUSE WHY THIS ACTION SHOULD NOT BE
DISMISSED

DR. WAGNER,

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(ECF Nos. 41, 46)
Defendant.

THIRTY-DAY DEADLINE
/

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Plaintiff Bobby Lee (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s

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second amended complaint, filed June 1, 2009, against Defendant Wagner for deliberate indifference

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to medical needs in violation of the Eighth Amendment. On March 18, 2011, the United States

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Marshal returned the summons and USM-285 form for Defendant Wagner, unexecuted. The

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Marshal attempted to secure a waiver of service but was unsuccessful in locating Defendant at

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Corcoran State Prison and Kern Valley State Prison.

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On March 28, 2011, a second order was issued directing the United States Marshal to contact

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the Legal Affairs Division of the California Department of Corrections and Rehabilitation to attempt

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service on Defendant Wagner. On April 14, 2011, the summons was returned unexecuted, stating

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“Office of Legal Affairs was unable to locate without more information. No information this person

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worked at Corcoran in June or July 2003.” Summons ECF No. 46.)

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Rule 4(m) of the Federal Rules of Civil Procedure provides, in relevant part:

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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.

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In cases involving a plaintiff proceeding in forma pauperis, a United States Marshal, upon

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order of the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “‘[A]n

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incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for

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service of the summons and complaint and ... should not be penalized by having his action dismissed

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for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his

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duties.’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912

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F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472

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(1995). “So long as the prisoner has furnished the information necessary to identify the defendant,

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the marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker, 14 F.3d at 1422

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(quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, in this action

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Plaintiff has failed to provide information sufficient for the United States Marshal to identify the

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person to be served.. The Court will provide Plaintiff with the opportunity to show cause why the

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action should not be dismissed at this time.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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1.

Within thirty (30) days from the date of service of this order, Plaintiff shall show

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cause why this action should not be dismissed, without prejudice, pursuant to Rule

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4(m); and

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2.

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The failure to respond to this order or the failure to show cause will result in this
action being dismissed, without prejudice.

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IT IS SO ORDERED.

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Dated:
icido3

April 21, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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