Gordon v. Welch et al

Filing 29

ORDER for Plaintiff to SHOW CAUSE why Defendants Welch, Huerra, and Bievlve Should not be Dismissed for Failure to Provide Information Sufficient to Effect Service, signed by Magistrate Judge Gary S. Austin on 9/14/2010. Show Cause Response due by 10/18/2010.(Verduzco, M)

(PC) Gordon v. Welch et al

Doc. 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Defendants. 16 THIRTY DAY DEADLINE 17 / 18 19 20 21 22 23 24 25 26 27 28 I. BACKGROUND Jarrod Gordon ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March 3, 2008. (Doc. 1.) This case now proceeds on the original Complaint, against defendants C/O Welch, C/O Person, C/O Huerra, C/O Gorey, C/O Bievlve, and C/O Smallie, for deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment. Id. II. SERVICE BY UNITED STATES MARSHAL On August 8, 2009, the Court issued an order directing the United States Marshal to initiate service of process upon defendants in this action. (Doc. 14.) All of the defendants were successfully served except C/O Welch, C/O Huerra, and C/O Bievlve. 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

JARROD GORDON, Plaintiff, v. WELCH, et al.,

1:08-cv-00305-LJO-GSA-PC ORDER FOR PLAINTIFF TO SHOW CAUSE WHY DEFENDANTS WELCH, HUERRA, AND BIEVLVE SHOULD NOT BE DISMISSED FOR FAILURE TO PROVIDE INFORMATION SUFFICIENT TO EFFECT SERVICE (Doc. 16.)

1 Pursuant to Rule 4(m), 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
I f Plaintiff is unable to provide a full name for a defendant, he must provide alternate information ­ such as a partial name, title, gender, work assignment, work schedule, etc. ­ sufficient for the Marshal or the CDCR to id e n tify the defendant for service. If Plaintiff is unable to provide a current address for a defendant, he must provide a n y other available information to enable the Marshal to locate the defendant.
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[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. Fed.R.Civ.P. 4(m). In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the Court, shall serve the summons and the complaint. Fed.R.Civ.P. 4(c)(2). "`[A]n incarcerated prose plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint and ... should not be penalized by having his action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties.'" Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), 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 . . . .'" Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint, the Court's sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22. In this instance, Plaintiff has not provided sufficient information to identify defendants C/O Welch, C/O Huerra, and C/O Bievlve and locate the defendants for service of process. (Doc. 16.) If Plaintiff is unable to provide the Marshal with additional information, defendants C/O Welch, C/O Huerra, and C/O Bievlve shall be dismissed from the action, without prejudice.1 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause why ///

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defendants C/O Welch, C/O Huerra, and C/O Bievlve should not be dismissed from the action at this time. III. CONCLUSION Accordingly, based on the foregoing, it is HEREBY ORDERED that: 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause why defendants C/O Welch, C/O Huerra, and C/O Bievlve should not be dismissed from this action; 2. The failure to show cause will result in the dismissal of defendants C/O Welch, C/O Huerra, and C/O Bievlve from this action; and 3. Plaintiff's failure to respond to this order shall result in a recommendation that this action be dismissed.

IT IS SO ORDERED. Dated: 6i0kij

September 14, 2010

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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