Simmons v. Hedgpeth

Filing 145

ORDER to SHOW CAUSE Why Defendant Rufino Should Not Be Dismissed Pursuant to Federal Rule of Civil Procedure 4(M) 134 , signed by Magistrate Judge Stanley A. Boone on 12/3/15: Thirty-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER I. SIMMONS,

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Plaintiff,

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v.

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GRISSOM, et al.,

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Defendants.

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Case No.: 1:07-cv-01058-LJO-SAB (PC)
ORDER TO SHOW CAUSE WHY DEFENDANT
RUFINO SHOULD NOT BE DISMISSED
PURSUANT TO FEDERAL RULE OF CIVIL
PROCEDURE 4(M)
[ECF No. 134]

Plaintiff Christopher I. Simmons is appearing pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983.

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This action is proceeding against Defendants Grissom, Keiley, St. Lucia, Ellstrom, Rients,

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Sauceda, Akanno, Rufino and Does 1-10 for deliberate indifference toward Plaintiff’s serious medical

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condition, against Defendants Ellstrom, Rients, Sauceda, Akanno and Rufino for deliberate indifferent

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arising from the deprivation of Plaintiff’s pain medication, and against Defendants Rients, Akanno,

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Sauceda, Rufino and Ellstrom for a violation of the First Amendment.
The United States marshal was not able to identify and locate Defendant Rufino and service

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was returned un-executed on October 15, 2015. (ECF No. 134.)

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Rule 4(m) of the Federal Rules of Civil Procedure provides:

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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, the Marshal, upon order of the

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Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

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“[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal

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for service of the summons and complaint and [he] should not be penalized by having his action

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

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his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations and citation

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omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the

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prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to

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effect service is automatically good cause. . . .” Walker, 14 F.3d at 1422 (internal quotations and

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citation omitted). However, where a pro se plaintiff fails to provide the Marshal with accurate and

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sufficient information to effect service of the summons and complaint, the Court’s sua sponte

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dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22.

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At this juncture, the United States marshal’s office has exhausted the avenues available to it in

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attempting to locate and serve Defendant Rufino.1 Walker, 14 F.3d at 1421-22. Plaintiff shall be

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provided with an opportunity to show cause why Defendant Rufino should not be dismissed. Fed. R.

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Civ. P. 4(m). If Plaintiff either fails to respond to this order or responds but fails to show cause,

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Defendant Rufino shall be dismissed from this action.

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

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1.

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why Defendant Rufino should not be dismissed from this action; and

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

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The marshal’s office sought assistance from the California Department of Corrections and Rehabilitation special
investigator who was unable to locate or identify Rufino. (ECF No. 134.)

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The failure to respond to this order or the failure to show cause will result in the

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dismissal of Defendant Rufino from this action.

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IT IS SO ORDERED.

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Dated:

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December 3, 2015
UNITED STATES MAGISTRATE JUDGE

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