Medina v. Campos et al

Filing 98

ORDER DISMISSING CASE without prejudice for failure to effect service of process signed by Magistrate Judge Dennis L. Beck on 7/13/2011. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JOHN DOE,

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CASE NO. 1:09-CV-00544-DLB PC
Plaintiff,

ORDER DISMISSING ACTION WITHOUT
PREJUDICE FOR FAILURE TO EFFECT
SERVICE OF PROCESS

v.
JULIO CAMPOS, et al.,

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Defendants.
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Plaintiff John Doe1 (“Plaintiff”) is a prisoner in the custody of the California Department

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of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding

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against Defendant Julio Campos. On September 9, 2009, the Court directed the United States

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Marshal to effect service of process on Defendant Julio Campos. On January 25, 2010, the

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United States Marshal returned the complaint and summons unexecuted. The USM-285 form

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indicated that Defendant Campos was no longer employed by CDCR or Kern Valley State

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Prison. On February 2, 2011, the Court directed the United States Marshal to re-attempt service

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on Defendant Campos, and to contact the litigation office of CDCR for assistance if necessary.

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The United States Marshal attempted to serve Defendant Campos at his last known home

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address, but the home was unoccupied, and no forwarding address was available. On July 11,

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2011, the United States Marshal returned the summons unexecuted.

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John Doe is a fictitious name.
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Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure,

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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.

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Fed. R. Civ. P. 4(m).
“[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the

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U.S. Marshal for service of the summons and complaint and ... should not be penalized by having

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

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failed to perform his duties.’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting

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Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated in part on other grounds,

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Sandin v. Conner, 515 U.S. 472 (1995). “So long as the prisoner has furnished the information

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necessary to identify the defendant, the marshal’s failure to effect service is ‘automatically good

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cause . . . .’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th

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Cir.1990)). However, where a pro se plaintiff fails to provide the Marshal with accurate and

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sufficient information to effect service of the summons and complaint, the Court’s sua sponte

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dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22.

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The United States Marshal has now twice attempted to serve Defendant Campos with

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process, but was unsuccessful. As Defendant Campos is the only remaining Defendant in this

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action, dismissal of this action without prejudice is appropriate.

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Accordingly, it is HEREBY ORDERED that

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1.

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Defendant Campos is dismissed without prejudice for failure to effect service of
process pursuant to Federal Rule of Civil Procedure 4(m);

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2.

This action is dismissed without prejudice;

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3.

All remaining motions are denied as moot; and

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4.

The Clerk of the Court is directed to close this action.

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IT IS SO ORDERED.
Dated:

July 13, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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