Carlson v. Hansen, et al.

Filing 46

ORDER Requiring Plaintiff to SHOW CAUSE why Defendant: Alavara, should not be DISMISSED pursuant to Rule 4(M) as to 42 , signed by Magistrate Judge Sheila K. Oberto on 05/31/2013. (30) Day Deadline(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS JOHN CARLSON,

CASE NO. 1:10-cv-00759-SKO PC

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Plaintiff,

ORDER REQUIRING PLAINTIFF TO SHOW
CAUSE WHY DEFENDANT ALAVARA
SHOULD NOT BE DISMISSED PURSUANT
TO RULE 4(M)

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v.
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R. HANSEN, et al.,
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(Doc. 42)
Defendants.

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THIRTY-DAY DEADLINE
/

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Plaintiff Thomas John Carlson, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on April 30, 2010. This action for damages is

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proceeding against Defendants Worth, Newton, Rodriguez,1 Alavara, Vega, Monroy, Angulo,

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Madrid, and O’Brien2 for acting with deliberate indifference to Plaintiff’s medical needs, in violation

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of the Eighth Amendment. Defendants Worth, Newton, Rodriguez, Vega, Monroy, Angulo, Madrid,

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and O’Brien waived service and made an appearance in the action. The Marshal has not been able

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to identify and serve Defendant Alavara, however.

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Rule 4(m) provides that

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[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.

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

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Identified as Rodrequez in the complaint.

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Identified as O’Brian in the complaint.

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

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order of the Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ.

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P. 4(c)(3). “[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 [he] 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 failed

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

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and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So

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long as the prisoner has furnished the information necessary to identify the defendant, the marshal’s

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failure to effect service is automatically good cause. . . .” Walker, 14 F.3d at 1422 (internal

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quotations and citation omitted). However, where a pro se plaintiff fails to provide the Marshal with

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

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

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Based on information provided by Pleasant Valley State Prison and the Legal Affairs

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Division of the California Department of Corrections and Rehabilitation, no one with the last name

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of Alavara is or was employed. (Doc. 42.) Based on this response, the Marshal’s Office appears to

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have exhausted the avenues available to it in attempting to locate and serve Defendant Alavara.

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Walker, 14 F.3d at 1421-22. Plaintiff shall be provided with an opportunity to show cause why

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Defendant Alavara should not be dismissed. Fed. R. Civ. P. 4(m). If Plaintiff either fails to respond

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to this order or responds but fails to show cause, Defendant Alavara shall be dismissed from this

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action.

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

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1.

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Within thirty (30) days from the date of service of this order, Plaintiff shall show
cause why Defendant Alavara should not be dismissed from this action; 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 the
dismissal of Defendant Alavara from this action.

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IT IS SO ORDERED.

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Dated:
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May 31, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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