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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 BRYAN E. RANSOM, Plaintiff, 13 14 15 16 17 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. 18 19 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.) 23 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 28 1 2 3 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.) 4 Rule 4(m) of the Federal Rules of Civil Procedure provides: 5 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. 6 7 8 9 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon 10 11 12 13 14 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 15 v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations and citation omitted), 16 abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the 17 prisoner has furnished the information necessary to identify the defendant, the 18 19 20 21 22 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. 23 24 25 26 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 27 1 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.) 2 1 responds but fails to show cause, Defendants Greaves and Corea shall be dismissed 2 from this action. 3 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 4 1. Within thirty (30) days from the date of service of this order, Plaintiff shall 5 show cause why Defendants Greaves and Corea should not be dismissed 6 from this action; and 7 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. 8 9 10 IT IS SO ORDERED. 11 Dated: March 4, 2015 /s/ 12 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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