Glass v. Woodford et al

Filing 69

ORDER Requiring Plaintiff to SHOW CAUSE Why Defendant Grandy Should not be Dismissed From This Action for Failure to Effect Service of Process, signed by Magistrate Judge Barbara A. McAuliffe on 10/25/11. Thirty-Day Deadline. (Gonzalez, R)

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-AWI-BAM PC
Plaintiff,

11

v.

12

ORDER REQUIRING PLAINTIFF TO SHOW
CAUSE WHY DEFENDANT GRANDY
SHOULD NOT BE DISMISSED FROM THIS
ACTION FOR FAILURE TO EFFECT SERVICE
OF PROCESS

R. FIELDS, et al.,

13

Defendants.

THIRTY-DAY DEADLINE
/

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 October 4, 2010, the waiver of

17

service for Defendant Grandy was returned unexecuted. The United States Marshall attempted to

18

execute service on Defendant Grandy at California State Prison, Corcoran, and was unsuccessful was

19

informed that Defendant Grandy had retired. (ECF No. 36.) On April 7, 2011, a second order issued

20

directing the United States Marshall to contact the Office of Legal Affairs to attempt to execute

21

service on Defendant Grandy. (ECF No. 43.) On May 2, 2011, the summons was returned

22

unexecuted, stating that the CDCR does not have a current address for Defendant Grandy. A letter

23

sent to Defendant Grandy at his last known address was returned “not at this address.” (ECF No.

24

45.)

25

Rule 4(m) of the Federal Rules of Civil Procedure provides, in relevant part:

26

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.

27
28

1

1

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

2

order of the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “‘[A]n

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

(quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, in this action the

11

United States Marshal has made two unsuccessful attempts to locate Defendant Grandy. The Court

12

will provide Plaintiff with the opportunity to show cause why Defendant Grandy should not be

13

dismissed from this action at this time.

14

Accordingly, based on the foregoing, it is HEREBY ORDERED that:

15

1.

Within thirty (30) days from the date of service of this order, Plaintiff shall show

16

cause why Defendant Grandy should not be dismissed from this action, without

17

prejudice, pursuant to Rule 4(m); and

18

2.

19
20
21

The failure to respond to this order or the failure to show cause will result in
Defendant Grandy being dismissed from this action, without prejudice.

IT IS SO ORDERED.
Dated:
1c20kb

October 25, 2011

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
2