Glass v. Woodford et al

Filing 58

ORDER Dismissing Doe Defendants, signed by Senior Judge Oliver W. Wanger on 8/31/11. (Verduzco, M)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

DONALD GLASS,

10

CASE NO. 1:09-cv-00098-OWW-SMS PC
Plaintiff,

11

v.

12

ORDER DISMISSING DOE DEFENDANTS

R. FIELDS, et al.,

13

(ECF Nos. 42, 49)

Defendants.
/

14
15

Plaintiff Donald Glass (“Plaintiff”) is a state prisoner proceeding pro se and in forma

16

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On April 7, 2011, the Magistrate

17

Judge issued an order to show cause why Doe Defendants should not be dismissed in this action for

18

Plaintiff’s failure to file an amended complaint identifying them. (ECF No. 42.) On May 13, 2011,

19

Plaintiff filed a response stating that he had filed a motion to modify the scheduling order to allow

20

him to conduct additional discovery and file an amended complaint. Plaintiff requested that the

21

Court postpone the order to show cause until his motions were decided. The Magistrate Judge has

22

considered Plaintiff’s motions to modify the scheduling order and by separate order found that good

23

cause did not exist to amend the scheduling order.

24

Pursuant to Rule 4(m),

25

[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

26
27
28

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
1

1
2

appropriate period.
Fed. R. Civ. P. 4(m).

3

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

4

order of the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “‘[A]n

5

incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for

6

service of the summons and complaint and ... should not be penalized by having his action dismissed

7

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

8

duties.’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912

9

F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472

10

(1995). “So long as the prisoner has furnished the information necessary to identify the defendant,

11

the marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker, 14 F.3d at 1422

12

(quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, where a pro se

13

plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of the

14

summons and complaint, the court’s sua sponte dismissal of the unserved defendants is appropriate.

15

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

16

In this instance, Plaintiff has not provided sufficient information to identify the Doe

17

defendants. Accordingly, it is HEREBY ORDERED that the Doe Defendants are DISMISSED from

18

this action, without prejudice, pursuant to Rule 4(m).

19
20
21

IT IS SO ORDERED.

22

Dated:
August 31, 2011
emm0d6

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

23
24
25
26
27
28
2