Shepard v. Cohen et al
Filing
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ORDER For Plaintiff to SHOW CAUSE Why Defendant Cohen Should Not Be Dismissed for Plaintiff's Failure to Effect Service, signed by Magistrate Judge Gary S. Austin on 5/28/15. 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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1:11-cv-00535-LJO-GSA-PC
LAMONT SHEPARD,
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Plaintiff,
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vs.
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ORDER FOR PLAINTIFF TO SHOW
CAUSE WHY DEFENDANT COHEN
SHOULD NOT BE DISMISSED FOR
PLAINTIFF’S FAILURE TO EFFECT
SERVICE
(Doc. 78.)
COHEN, et al.,
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Defendants.
THIRTY DAY DEADLINE
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I.
RELEVANT PROCEDURAL HISTORY
Lamont Shepard (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis
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with this civil rights action pursuant to 42 U.S.C. ' 1983.
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commencing this action on March 30, 2011. (Doc. 1.) This action now proceeds on the
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Second Amended Complaint filed on May 19, 2014, against defendants Dr. Cohen, Sergeant J.
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Lopez, Correctional Officer (C/O) Z. Dean, C/O J. Campbell, and Vera Brown (LVN) on
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Plaintiff's due process claim, and against defendants Dr. Cohen, Sergeant J. Lopez, C/O Z.
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Dean, and C/O J. Campbell on Plaintiff's excessive force claim. (Doc. 41.)
Plaintiff filed the Complaint
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On August 22, 2014, the court issued an order directing the United States Marshal
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(“Marshal”) to serve process upon defendants Brown and Cohen. (Doc. 54.) On May 26,
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2015, the Marshal filed a return of service unexecuted as to defendant Cohen, indicating that
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the Marshal was unable to locate defendant Cohen for service of process. (Doc. 78.)
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II.
SERVICE BY UNITED STATES MARSHAL
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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
B on motion or on its own after notice to the plaintiff B 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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In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of
A>[A]n
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the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2).
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incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal
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for service of the summons and complaint and ... should not be penalized by having his action
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dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to
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perform his duties.=@ Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v.
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Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v.
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Connor, 515 U.S. 472 (1995). ASo long as the prisoner has furnished the information necessary
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to identify the defendant, the marshal=s failure to effect service is >automatically good cause . . .
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.=@
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Cir.1990)). However, where a pro se plaintiff fails to provide the Marshal with accurate and
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sufficient information to effect service of the summons and complaint, the Court=s sua sponte
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dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22.
Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th
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Background
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The return of service filed by the Marshal on May 26, 2015, indicates that on September
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26, 2014, the Marshal mailed service documents to defendant Cohen at Corcoran State Prison
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(“CSP”), at the address provided by Plaintiff. (Doc. 78.) There is no indication on the return of
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service that the Marshal received any response to the mail service. (Id.) The Marshal certified
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that he or she was unable to locate defendant Cohen, and made a notation, “5/26/15 Return
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Unexecuted, Unable to Locate.” (Id.)
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Pursuant to Rule 4(m), the Court will provide Plaintiff with an opportunity to show
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cause why defendant Cohen should not be dismissed from this action for failure to serve
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process. Plaintiff has not provided sufficient information to identify and locate defendant
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Cohen for service of process. If Plaintiff is unable to provide the Marshal with additional
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information, defendant Cohen shall be dismissed from this action.
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III.
CONCLUSION
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Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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1.
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show cause why defendant Cohen should not be dismissed from this action
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Within thirty (30) days from the date of service of this order, Plaintiff shall
pursuant to Rule 4(m); and
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Plaintiff’s failure to respond to this order may result in the dismissal of
defendant Cohen or dismissal of this action in its entirety.
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IT IS SO ORDERED.
Dated:
May 28, 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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