Herrera v. Hall et al

Filing 49

ORDER Denying 31 46 Request for Entry of Default; ORDER to SHOW CAUSE why Defendants Dill and L. Bluford Should not be Dismissed from this Action signed by Magistrate Judge Sheila K. Oberto on 06/20/2010. Show Cause Response due by 7/26/2010. (Flores, E)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 / 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Carlos Herrera ("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 has requested that the Court enter a default against Defendants Dill and Bluford because Dill and Bluford have failed to plead or otherwise defend in this action. It appears that Dill and Bluford have failed to plead or otherwise defend this action because they have not been served under Federal Rule of Civil Procedure 4(c). On August 14, 2009, the Court ordered the U.S. Marshall to serve Defendants Hall, Moonga, Zamora, Dill, Turella, Penner, Lopez, Bluford, and Grannis with a summons and a copy of Plaintiff's first amended complaint. (Doc. #13.) On October 23, 2009, the Court received unexecuted summonses as to Defendants Dill and Bluford. (Docs. #19, 20.) The summonses indicate that the U.S. Marshal was unable to effect service of process on Dill and Bluford because they could not be located using the information 1 v. (Docs. 31, 46) C. HALL, et al., and Defendants. ORDER TO SHOW CAUSE WHY DEFENDANTS DILL AND L. BLUFORD SHOULD NOT BE DISMISSED FROM THIS ACTION SHOW CAUSE DUE WITHIN 30 DAYS CARLOS HERRERA, Plaintiff, CASE NO. 1:08-cv-01882-LJO-SKO PC ORDER DENYING REQUEST FOR ENTRY OF DEFAULT

UNITED STATES DISTRICT COURT

1 2 3 4 5 6 7 8

provided by Plaintiff. The summonses also indicated that the U.S. Marshal was unable to locate Dill or Bluford using information from the "CDC Locator" database. Federal Rule of Civil Procedure 4(m) provides: 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. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1). Defendants Dill and Bluford have not been served within the 120-day deadline set forth in Rule

9 4(m). Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915 and is entitled to have 10 process served by a U.S. Marshal. 28 U.S.C. § 1915(d), Federal Rule of Civil Procedure 4(c)(3). 11 However, the inability to serve Defendants Dill and Bluford appears to stem from Plaintiff's failure 12 to provide sufficient information to locate Defendants and effect service. See Walker v. Sumner, 13 14 F.3d 1415, 1422 (9th Cir. 1994) (dismissal under Rule 4 appropriate where Plaintiff fails to 14 provide U.S. Marshal with sufficient information to serve defendant) abrogated on other grounds by 15 Sandin v. Connor, 515 U.S. 472 (1995). Plaintiff is responsible for providing sufficient information 16 to the U.S. Marshal to effect service of process. 17 Accordingly, it is HEREBY ORDERED that: 18 1. 19 2. 20 and Bluford should not be dismissed from this action pursuant to Federal Rule of 21 22 23 IT IS SO ORDERED. 24 25 26 27 28
S h o u ld Plaintiff have more current information on the whereabouts of Defendants Dill and Bluford, he s h o u ld provide it to the Court at this time.
1

Plaintiff's requests for entry of default are DENIED; and Plaintiff is ordered to SHOW CAUSE within thirty (30) days why Defendants Dill

Civil Procedure 4(m).1

Dated: ie14hj

June 20, 2010

/s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

2