Harrison v. Adams, et al

Filing 227

ORDER Requiring Plaintiff to SHOW CAUSE Why Certain Defendants Should Not be Dismissed, signed by Magistrate Judge Michael J. Seng on 3/16/15. 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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MICHAEL D. HARRISON,

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Plaintiff,
v.
D. ADAMS, et al.,
Defendants.

CASE NO. 1:08-cv-1065-AWI-MJS (PC)
ORDER REQUIRING PLAINTIFF TO
SHOW CAUSE WHY CERTAIN
DEFENDANTS SHOULD NOT BE
DISMISSED
THIRTY (30) DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se in this civil rights action brought
pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The Court screened Plaintiff’s Eighth
Amended Complaint and found that it stated a cognizable claim against Defendants
Jones, Moore, Burns, Dava, Kim, Edmonds, Galvan, C. Gonzalez, M. Gonzalez,
Johnson, O’Neal, Parsons, Raygoza, Roth, Tumayo, Urbano, Vicente, Zakari, Bastianon,
Campos, Casio, Cisneros, and Coronado for violation of Plaintiff’s rights under the
Eighth Amendment. (ECF No. 160.)
Defendants Jones, Moore, Burns, Dava, Kim, Galvan, C. Gonzalez, M. Gonzalez,
Johnson, O’Neal, Parsons, Roth, Tumayo, Urbano, Vicente, Casio, Cisneros, and
Coronado have been served and have answered the complaint. (ECF No. 93, 147, 167.)
Defendant Campos ostensibly was served but filed a motion to dismiss based on

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insufficiency of service of process. (ECF No. 183.) That motion was denied. (ECF No.

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190). Defendants Campos and Johnson have moved to quash service. (ECF No. 201.)

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Their motion remains pending.

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Service on Defendants Zakari, Bastianon, Edmonds, and Raygoza has been

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returned unexecuted. (ECF Nos. 177, 179, 193, 194.) On July 22, 2014, Plaintiff was

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ordered to show cause why these Defendants should not be dismissed for failure to

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provide sufficient information to effect service of the summons and complaint. (ECF No.

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195.) Plaintiff responded that he had a pending motion to compel discovery of the full

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names of these Defendants. (ECF Nos. 197 & 198.) Thereafter, on August 19, 2014, the

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Court granted in part Plaintiff’s motion to compel and discharged the order to show

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cause. (ECF No. 199.) Plaintiff has not taken any further steps to effect service on

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Defendants Zakari, Bastianon, Edmonds, and Raygoza in the nearly seven months since

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his motion to compel was granted.

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

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order of the Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d);

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Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is

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entitled to rely on the U.S. Marshals for service of the summons and complaint and [he]

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should not be penalized by having his action dismissed for failure to effect service where

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the U.S. Marshal or the court clerk has failed to perform his duties.” Walker v. Sumner,

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14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations and citation omitted), overruled

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

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

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

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

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Marshal with accurate and sufficient information to effect service of the summons and

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complaint, the Court’s sua sponte dismissal of the unserved defendants is appropriate.

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Walker, 14 F.3d at 1421-22.

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At this time, the Marshals Service has exhausted the avenues available to it to

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locate and serve Defendants Zakari, Bastianon, Edmonds, and Raygoza. See Walker,

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14 F.3d at 1421-22. Accordingly, Plaintiff shall be required to show cause why these

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Defendants should not be dismissed based on inability to effect service on them. 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

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cause, the Court will recommend that Defendants Zakari, Bastianon, Edmonds, and

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Raygoza be dismissed from the action without prejudice.

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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

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show cause why Defendants Zakari, Bastianon, Edmonds, and Raygoza

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should not be dismissed from this action; and

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2. If Plaintiff fails to respond to this order or fails to show cause, the Court will

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recommend that Defendants Zakari, Bastianon, Edmonds, and Raygoza be

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dismissed from this action without prejudice.

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IT IS SO ORDERED.
Dated:

March 16, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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