Ahkeem Williams v. Pedriero et al

Filing 25

ORDER REQUIRING Plaintiff to SHOW CAUSE Why Defendant Stephens Should Not Be Dismissed Pursuant to Rule 4(M) 22 THIRTY-DAY DEADLINE, signed by Magistrate Judge Sheila K. Oberto on 4/27/13: Failure to comply with this order will result in the dismissal of Defendant Stephens from this action. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AHKEEM WILLIAMS,

CASE NO. 1:12-cv-00606-SKO PC

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Plaintiff,

ORDER REQUIRING PLAINTIFF TO SHOW
CAUSE WHY DEFENDANT STEPHENS
SHOULD NOT BE DISMISSED PURSUANT
TO RULE 4(M)

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v.
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KIM PEDRIERO, et al.,
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(Doc. 22)
Defendants.

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THIRTY-DAY DEADLINE
/

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Plaintiff Akheem Williams, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on April 17, 2012. This action is proceeding

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against Defendants Garcia, Valdiz, Cortez, Silva, Castro, Day, Stephens,1 Collier, Torres, Delia, and

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Tordson for use of excessive physical force, in violation of the United States Constitution.

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Defendants Garcia, Valdiz, Cortez, Silva, Castro, Day, Collier, Torres, Delia, and Tordson waived

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service and made appearances in the action. The Marshal has not been able to locate and serve

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Defendant Stephens, however.

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Rule 4(m) provides that

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[i]f 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).

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Identified as Stevens in the complaint and corrected by Plaintiff in his notice filed November 29, 2012.

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In cases involving a plaintiff proceeding in forma pauperis, the United States 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.

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P. 4(c)(3). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the

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U.S. Marshal for service of the summons and complaint and [he] should not be penalized by having

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his action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed

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to perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations

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and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So

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

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failure to effect service is automatically good cause. . . .” Walker, 14 F.3d at 1422 (internal

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quotations and citation omitted). However, where a pro se plaintiff fails to provide the Marshal with

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accurate and sufficient information to effect service of the summons and complaint, the Court’s sua

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sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22.

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Based on information provided by Kings County Jail, the Marshal forwarded the service

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packet to Kings County Probation and was informed that Fred Stephens, Assistant Chief Probation

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Officer, is deceased. (Doc. 22.) Based on the responses by Kings County Jail and Kings County

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Probation, the Marshal’s Office appears to have exhausted the avenues available to it in attempting

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to locate and serve Defendant Stephens. Walker, 14 F.3d at 1421-22. Plaintiff shall be provided

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with an opportunity to show cause why Defendant Stephens should not be dismissed. Fed. R. Civ.

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P. 4(m). If Plaintiff either fails to respond to this order or responds but fails to show cause,

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Defendant Stephens shall be dismissed from this action.

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

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1.

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Within thirty (30) days from the date of service of this order, Plaintiff shall show
cause why Defendant Stephens should not be dismissed from this action; and

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The failure to respond to this order or the failure to show cause will result in the
dismissal of Defendant Stephens from this action.

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IT IS SO ORDERED.

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Dated:
ie14hj

April 27, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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