Paredez v. Yates et al

Filing 25

ORDER to SHOW CAUSE Why Defendant Ramirez should not be Dismissed for Failure to Provide Efficient Information to Effect Service of Process; Response Due within 21 Days signed by Magistrate Judge Dennis L. Beck on 4/22/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD PAREDEZ,

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Plaintiff,

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v.
C/O RAMIREZ, et al.,

Case No. 1:10-cv-01672-AWI-DLB PC
ORDER TO SHOW CAUSE WHY
DEFENDANT RAMIREZ SHOULD NOT
BE DISMISSED FOR FAILURE TO
PROVIDE SUFFICIENT INFORMATION
TO EFFECT SERVICE OF PROCESS (ECF
No. 24)

Defendants.
RESPONSE DUE WITHIN 21 DAYS

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Plaintiff Richard Paredez (“Plaintiff”) is a California state prisoner proceeding pro se and in

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

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Plaintiff’s First Amended Complaint, filed May 31, 2011, against Defendant Ramirez for violation

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of Plaintiff’s rights under the First Amendment. ECF No. 14. On March 14, 2012, the Court issued

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an order directing the United States Marshals Service to initiate service of process on Defendant

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Ramirez. The Marshals Service was unable to locate Defendant Ramirez, and returned the summons

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unexecuted on April 19, 2013. ECF No. 24.

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Pursuant to Rule 4(m),

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

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

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se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the
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summons and complaint and ... should not be penalized by having his action dismissed for failure to

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effect service where the U.S. Marshal or the court clerk has failed to perform his duties.’” Walker v.

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Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir.

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1990)), abrogated in part on other grounds, Sandin v. Conner, 515 U.S. 472 (1995). “So long as the

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

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effect service is ‘automatically good cause . . . .’” Walker, 14 F.3d at 1422 (quoting Sellers v. United

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States, 902 F.2d 598, 603 (7th Cir.1990)). However, where a pro se plaintiff fails to provide the

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Marshal with accurate and sufficient information to effect service of the summons and complaint,

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the Court’s sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-

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22.

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In this instance, the information provided by Plaintiff is insufficient, as the facility, Pleasant

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Valley State Prison, indicated that there are 11 Ramirezes employed there, and the litigation

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coordinator was unable to identify. If Plaintiff is unable to provide the Marshal with further

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information so that the correct Defendant Ramirez can be located, the Defendant shall be dismissed

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from the action, without prejudice. Pursuant to Rule 4(m), the Court will provide Plaintiff with the

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opportunity to show cause why Defendant Ramirez should not be dismissed from the action at this

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time.

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

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1.

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cause why Defendant Ramirez should not be dismissed from this action; and

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Within twenty (21) days from the date of service of this order, Plaintiff shall show

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The failure to respond to this order or the failure to show cause will result in

recommendation of dismissal of Defendant Ramirez from this action.

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

April 22, 2013

L. Beck

UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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