McDonald v. Yates et al

Filing 29

ORDER Requiring Plaintiff to Provide Further Identifying Information for Defendants Clark and Rodriguez or SHOW CAUSE Why They Should Not Be Dismissed 23 , 24 , signed by Magistrate Judge Sheila K. Oberto on 7/7/2011. (Gonzalez, R)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
JIMMY MCDONALD,

CASE NO. 1:09-cv-00730-OWW-SKO PC

9
Plaintiff,

ORDER REQUIRING PLAINTIFF TO
PROVIDE FURTHER IDENTIFYING
INFORMATION FOR DEFENDANTS CLARK
AND RODRIGUEZ OR SHOW CAUSE WHY
THEY SHOULD NOT BE DISMISSED

Defendants.

(Docs. 23 and 24)

10
v.
11
J. A. YATES, et al.,
12
13

THIRTY-DAY DEADLINE
14

/

15
16

Plaintiff Jimmy McDonald, a state prisoner proceeding pro se and in forma pauperis, filed

17

this civil rights action pursuant to 42 U.S.C. § 1983 on April 24, 2009. The action is proceeding

18

against Defendants Cano, Clark, Rodriguez, and Roberts arising out of their failure to accommodate

19

Plaintiff’s medical need for a lower bunk, in violation of the Eighth Amendment. Defendants Cano

20

and Roberts filed an answer to Plaintiff’s complaint on July 6, 2011, but the United States Marshal

21

was unable to locate and serve Defendants Clark and Rodriguez and service was returned un-

22

executed on June 2, 2011.

23

Rule 4(m) provides that

24

[i]f 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.

25
26
27

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

28
1

1

In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the

2

Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

3

“‘[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S.

4

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

5

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

6

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

7

Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515

8

U.S. 472 (1995). “So long as the prisoner has furnished the information necessary to identify the

9

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

10

at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, where a pro

11

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

12

the summons and complaint, the Court’s sua sponte dismissal of the unserved defendants is

13

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

14

In this instance, there are three correctional officers with the last name of Clark and seven

15

correctional officers with the last name of Rodriguez at Pleasant Valley State Prison.1 (Doc. 24, p.

16

2.) Therefore, further identifying information is necessary, preferably in the form of a first initial

17

or an exhibit bearing the defendants’ names, if possible. If Plaintiff is unable to provide any further

18

information, he must show cause why Defendants Clark and Rodriguez should not be dismissed from

19

action at this time.

20

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

21

1.

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

22

(1) provide further identifying information for Defendants Clark and Rodriguez or

23

(2) show cause why they should not be dismissed from the action at this time; and

24

///

25

///

26
27
28

1

The Clerk’s Office erroneously identified Rodriguez as Rodrigues in the service documents, but the
Litigation Office addressed that error by informing the Marshal that they do no have any employees named
Rodrigues and seven employees named Rodriguez.

2

1

2.

2

The failure to comply with this order will result in the dismissal of Defendants Clark
and Rodriguez from this action.

3
4

IT IS SO ORDERED.

5

Dated:
ie14hj

July 7, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3