Simmons v. Hedgpeth

Filing 71

ORDER REQUIRING Plaintiff to SHOW CAUSE Why Defendant Rufino Should Not Be Dismissed Pursuant to Rule 4(M), signed by Magistrate Judge Stanley A. Boone on 2/19/14: Thirty-Day Deadline. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER I. SIMMONS, 12 Plaintiff, 13 v. 14 GRISSOM, et al., 15 Defendants. 16 Case No.: 1:07-cv-01058-LJO-SAB (PC) ORDER REQUIRING PLAINTITFF TO SHOW CAUSE WHY DEFENDANT RUFINO SHOULD NOT BE DISMISSED PURSUANT TO RULE 4(M) Plaintiff Christopher I. Simmons is appearing pro se and in forma pauperis in this civil rights 17 18 ) ) ) ) ) ) ) ) ) ) action pursuant to 42 U.S.C. § 1983. 19 This action is proceeding against Defendants Grissom, Keiley, St. Lucia, Ellstrom, Rients, 20 Sauceda, Akanno, Rufino and Does 1-10 for deliberate indifference toward Plaintiff’s serious medical 21 condition, against Defendants Ellstrom, Rients, Sauceda, Akanno and Rufino for deliberate indifferent 22 arising from the deprivation of Plaintiff’s pain medication, and against Defendants Rients, Akanno, 23 Sauceda, Rufino and Ellstrom for a violation of the First Amendment. The United States Marshal has 24 not been able to locate and serve Defendant Rufino. 25 /// 26 /// 27 /// 28 /// 1 1 Rule 4(m) of the Federal Rules of Civil Procedure provides: 2 [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. 3 4 5 Fed. R. Civ. P. 4(m). 6 In cases involving a plaintiff proceeding in forma pauperis, the United States Marshal, upon 7 order of the Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 8 4(c)(3). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. 9 Marshal for service of the summons and complaint and [he] should not be penalized by having his 10 action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 11 12 13 14 perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to effect service is automatically good cause….” Id. at 1422 (internal quotations and citation omitted). 15 However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information 16 to effect service of the summons and complaint, the Court’s sua sponte dismissal of the unserved 17 defendants is appropriate. Id. at 1421-1422. 18 Here, the Marshal forwarded the service packet to a special investigator at the California 19 Department of Corrections and Rehabilitation. The special investigator was unable to locate 20 Defendant Rufino. Plaintiff shall be provided with an opportunity to show cause why Defendant 21 Rufino should not be dismissed. Fed. R. Civ. P. 4(m). If Plaintiff either fails to respond to this order 22 or responds but fails to show cause, Defendant Rufino shall be dismissed from this action. 23 /// 24 /// 25 /// 26 /// 27 /// 28 2 1 Based on the foregoing, 2 IT IS HEREBY ORDERED that: 3 1. why Defendant Rufino should not be dismissed from this action; and 4 5 Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 2. The failure to respond to this order or the failure to show cause will result in the dismissal of Defendant Rufino from this action. 6 7 8 9 10 11 IT IS SO ORDERED. Dated: February 19, 2014 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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