Ransom v. Department of Corrections & Rehabilitations, et al.

Filing 43

ORDER REQUIRING Plaintiff to SHOW CAUSE Why Defendants Greaves and Corea Should Not be Dismissed Pursuant to Rule 4(m), signed by Magistrate Judge Michael J. Seng on 3/4/2015. Show Cause Response Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRYAN E. RANSOM,
Plaintiff,

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Case No. 1: 11-cv-00068-AWI-MJS (PC)

v.
DEPARTMENT OF CORRECTIONS AND
REHABILITATION, et al.,

ORDER REQUIRING PLAINTIFF TO
SHOW CAUSE WHY DEFENDANTS
GREAVES AND COREA SHOULD NOT
BE DISMISSED PURSUANT TO RULE
4(M)
(ECF No. 34)

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

20 rights action brought pursuant to 28 U.S.C. § 1983.

The action proceeds against

21 Defendants Greaves, Bondoc, Punt, Madina, Swingle, Neubarth, Corea and Dhah on
22 Plaintiff’s Eighth Amendment medical indifference claims. (ECF Nos. 21 & 26.)
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Defendants Swingle and Neubarth waived service and made appearances in the

24 action. (ECF Nos. 30, 31, & 32.) Defendant Dhah was personally served and has also
25 made an appearance in the action. (ECF Nos. 36 & 37.) Defendant Punt waived
26 service and has been ordered to show cause why default should not be entered. (ECF
27 Nos. 33 & 39.) The Marshal has been ordered to re-direct service on Defendants
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Bondoc and Madina. However, the Marshal was not able to locate Defendants Greaves
and Corea and service was returned un-executed on November 19, 2014. (ECF No.
34.)

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Rule 4(m) of the Federal Rules of Civil Procedure provides:

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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, the 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. P. 4(c)(3). “An incarcerated pro se plaintiff proceeding in forma pauperis is
entitled to rely on the U.S. Marshal for service of the summons and complaint and . . .
[he] should not be penalized by having his action dismissed for failure to effect service
where the U.S. Marshal or the court clerk has failed to perform his duties. . . ” Walker

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v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations and citation omitted),
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abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the

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prisoner has furnished the information necessary to identify the defendant, the
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marshal’s failure to effect service is automatically good cause. . . .”

quotations and citation omitted). However, where a pro se plaintiff fails to provide the
Marshal with accurate and sufficient information to effect service of the summons and
complaint, the Court’s sua sponte dismissal of the unserved defendants is appropriate.
Id. at 1421-22.

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Id. (internal

At this juncture, the Marshal’s Office has exhausted the avenues available to it in
attempting to locate and serve Defendants Greaves and Corea.1

Plaintiff shall be

provided with an opportunity to show cause why Defendants Greaves and Corea should
not be dismissed. Fed. R. Civ. P. 4(m). If Plaintiff either fails to respond to this order or

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The Marshal’s Office sought assistance from the prison and the Special Investigator for the California

28 Department of Corrections and Rehabilitation. (ECF No. 34.)
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1 responds but fails to show cause, Defendants Greaves and Corea shall be dismissed
2 from this action.
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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

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show cause why Defendants Greaves and Corea should not be dismissed

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from this action; and

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2.

The failure to respond to this order or the failure to show cause will result
in the dismissal of Defendants Greaves and Corea from this action.

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10 IT IS SO ORDERED.
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Dated:

March 4, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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