Brown v. Fambrough et al

Filing 23

ORDER REQUIRING Plaintiff to SHOW CAUSE Within Thirty Days why Defendant C. Hay Should not be Dismissed for Failure to Provide Information Sufficient to Effect Service re 15 signed by Magistrate Judge Dennis L. Beck on 4/3/2010. Show Cause Response due by 5/10/2010. (Bradley, A)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 THORNELL BROWN, 10 11 v. Plaintiff, CASE NO. 1:09-cv-00573-DLB PC ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WITHIN THIRTY DAYS WHY DEFENDANT C. HAY SHOULD NOT BE DISMISSED FOR FAILURE TO PROVIDE INFORMATION SUFFICIENT TO EFFECT SERVICE (Doc. 15) 14 / 15 16 Plaintiff Thornell Brown ("Plaintiff") is a state prisoner proceeding pro se and in forma

UNITED STATES DISTRICT COURT

12 FAMBROUGH, et al., 13 Defendants.

17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on 18 Plaintiff's complaint, filed March 30, 2009. (Doc. 1.) On November 13, 2009, the Court issued an 19 order directing the United States Marshal to initiate service of process on ten defendants. (Doc. 13.) 20 The Marshal was unable to locate and serve Defendant C. Hay and on February 1, 2010, the Marshal 21 returned the USM-285 form to the Court. (Doc. 15.) 22 23 24 25 Pursuant to Rule 4(m), 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.

26 Fed. R. Civ. P. 4(m). 27 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the

28 Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). "`[A]n incarcerated pro 1

1 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 2 summons and complaint and ... should not be penalized by having his action dismissed for failure 3 to effect service where the U.S. Marshal or the court clerk has failed to perform his duties.'" Walker 4 v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th 5 Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). "So long as the 6 prisoner has furnished the information necessary to identify the defendant, the marshal's failure to 7 effect service is `automatically good cause . . . .'" Walker, 14 F.3d at 1422 (quoting Sellers v. United 8 States, 902 F.2d 598, 603 (7th Cir.1990)). However, where a pro se plaintiff fails to provide the 9 Marshal with accurate and sufficient information to effect service of the summons and complaint, 10 the Court's sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 142111 22. 12 In this instance, the address provided by Plaintiff for Defendant C. Hay is no longer accurate,

13 as Defendant C. Hay is no longer employed at the facility, Kern Valley State Prison. (Doc. 15.) 14 There are also too many C. Hays in the CDCR database. If Plaintiff is unable to provide the Marshal 15 with a current address at which Defendant C. Hay can be located, the defendant shall be dismissed 16 from the action, without prejudice. Pursuant to Rule 4(m), the Court will provide Plaintiff with the 17 opportunity to show cause why Defendant C. Hay should not be dismissed from the action at this 18 time. 19 20 21 22 23 24 25 3b142a 26 27 28 2 2. Accordingly, based on the foregoing, it is HEREBY ORDERED that: 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause why Defendant C. Hay should not be dismissed from this action; and The failure to respond to this order or the failure to show cause will result in dismissal of Defendant C. Hay from this action. IT IS SO ORDERED. Dated:

April 3, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE