Zuniga v. Jordan et al

Filing 37

ORDER REQUIRING Plaintiff to SHOW CAUSE why Defendant John Doe should not be Dismissed from Action; Thirty Day Deadline signed by Magistrate Judge Sandra M. Snyder on 7/26/2011. Show Cause Response due by 8/29/2011. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LARRY ZUNIGA,

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CASE NO. 1:09-cv-01208-AWI-SMS PC
Plaintiff,
ORDER REQUIRING PLAINTIFF TO SHOW
CAUSE WHY DEFENDANT JOHN DOE
SHOULD NOT BE DISMISSED FROM ACTION

v.
CHRIS JORDAN, et al.,

THIRTY DAY DEADLINE
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Defendants.
/

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Plaintiff Larry Zuniga (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s

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complaint filed July 13, 2009, against Defendants Berke, Torres, Henderson, Jordan, and John Doe

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for excessive force in violation of the Eighth Amendment. On April 29, 2010, a discovery and

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scheduling order was issued setting the deadline to amend pleadings as October 29, 2010, and, after

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several motions to amend the scheduling order were granted, the discovery cut off date was April

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29, 2011.

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

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

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

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

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

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

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

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

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

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

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

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Plaintiff has failed to file an amended complaint to identify Defendant John Doe. Discovery has

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closed and the deadline to file amended pleadings is passed. Pursuant to Rule 4(m), the Court will

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provide Plaintiff with the opportunity to show cause why Defendant John Doe should not be

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dismissed from the action at this time.

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

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1.

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

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

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prejudice, pursuant to Rule 4(m); and

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2.

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

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IT IS SO ORDERED.

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Dated:
icido3

July 26, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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