Williams v. Harrington et al

Filing 126

ORDER to SHOW CAUSE why Defendant D. Jayvinder Should not be Dismissed from this Action without Prejudice Because of Plaintiff's Failure to Locate Defendant D. Jayvinder signed by Magistrate Judge Erica P. Grosjean on 01/11/2017. (Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 Plaintiff, 12 13 Case No. 1:12-cv-00226-LJO-EPG (PC) MARCUS R. WILLIAMS, ORDER FOR PLAINTIFF TO SHOW CAUSE WHY DEFENDANT D. JAYVINDER SHOULD NOT BE DISMISSED FROM THIS ACTION WITHOUT PREJUDICE BEACAUSE OF PLAINTIFF’S FAILURE TO LOCATE DEFENDANT D. JAYVINDER (ECF NO. 123) v. KELLY HARRINGTON, et al., 14 Defendants. 15 THIRTY DAY DEADLINE 16 17 18 19 20 21 22 23 24 25 26 27 28 I. RELEVANT PROCEDURAL HISTORY Marcus Williams ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On February 17, 2012, Plaintiff commenced this action by filing a complaint. (ECF No. 1). The Court found cognizable claims against seven defendants (ECF Nos. 10, 16, 20, & 22), and, after the appropriate service documents were completed and returned (ECF No. 23), ordered the United States Marshal Service (“the Marshal”) to serve the defendants (ECF No. 24). However, because there was no information before the Court as to whether defendant D. Jayvinder had ever been served, on October 21, 2016, Chief Judge Lawrence J. O’Neill gave Plaintiff the option to have the Marshal re-serve defendant D. Jayvinder. (ECF No. 110). On 1 1 November 9, 2016, Plaintiff informed the Court that he wanted to have the Marshal re-serve 2 defendant D. Jayvinder. (ECF No. 112). Once Plaintiff submitted the appropriate service 3 documents, the Court issued an order directing the Marshal to serve process upon defendant D. 4 Jayvinder. 5 unexecuted, indicating that the California Department of Corrections and Rehabilitation 6 (“CDCR”) had nobody by the name of D. Jayvinder in their records. (ECF No. 123). 7 II. (ECF No. 118). On January 9, 2017, the Marshal filed a return of service SERVICE BY UNITED STATES MARSHAL 8 Pursuant to Rule 4(m), 9 If a defendant is not served within 90 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. 10 11 12 13 Fed. R. Civ. P. 4(m).1 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of A>[A]n 14 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). 15 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. 16 Marshal for service of the summons and complaint and ... should not be penalized by having 17 his action dismissed for failure to effect service where the U.S. Marshal or the court clerk has 18 failed to perform his duties.=@ Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting 19 Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), overruled on other grounds by Sandin 20 v. Connor, 515 U.S. 472 (1995). ASo long as the prisoner has furnished the information 21 necessary to identify the defendant, the marshal=s failure to effect service is >automatically good 22 cause . . . .=@ Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th 23 Cir.1990)). However, where a pro se plaintiff fails to provide the Marshal with accurate and 24 sufficient information to effect service of the summons and complaint, the Court=s sua sponte 25 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421-22. 26 27 28 1 Fed. R. Civ. P. 4(m) was amended in 2015 to reduce the time for serving a defendant from 120 days to 90 days. However, the time period to serve defendant Sonny Perez has expired under both the preamendment version of the rule and the current version rule. 2 1 The return of service filed by the Marshal on January 9, 2017, indicates that, according 2 to the CDCR, the CDCR does not have anyone in their records by the name of D. Jayvinder. 3 (ECF No. 123). There is no indication on the return of service that the Marshal received a 4 response from defendant D. Jayvinder. (Id.) The Marshal certified that he or she was unable to 5 locate defendant D. Jayvinder. (Id.) 6 Pursuant to Rule 4(m), the Court will provide Plaintiff with an opportunity to show 7 cause why defendant D. Jayvinder should not be dismissed from the case because of Plaintiff’s 8 failure to provide the Marshal with accurate and sufficient information to effect service of the 9 summons and complaint on defendant D. Jayvinder. If Plaintiff is unable to provide the 10 Marshal with additional information the Court will issue findings and recommendations to 11 Chief Judge O’Neill, recommending that defendant D. Jayvinder be dismissed from the case, 12 without prejudice. 13 III. CONCLUSION 14 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 15 1. Within thirty (30) days from the date of service of this order, Plaintiff shall 16 show cause why the Court should not issue findings and recommendations to 17 Chief Judge O’Neill, recommending that defendant D. Jayvinder be dismissed 18 from this action, without prejudice, pursuant to Federal Rule of Civil Procedure 19 4(m). 20 21 22 IT IS SO ORDERED. Dated: January 11, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 3

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