Crisp v. Wasco State Prison

Filing 33

ORDER REQUIRING Plaintiff to SHOW CAUSE Why Defendant Cisco Should Not be Dismissed Pursuant to Rule 4(m), signed by Magistrate Judge Sheila K. Oberto on 12/24/15. 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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OBIE L. CRISP III,

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Plaintiff,

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v.

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

WASCO STATE PRISON, et al.,

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Case No. 1:13-cv-01899-SKO (PC)

Defendants.
_____________________________________/

(Doc. 27)
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Plaintiff Obie L. Crisp III (“Plaintiff”), a state prisoner proceeding pro se and in forma

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17 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 22, 2013. On
18 September 16, 2015, the Court directed the United States Marshal (“USM”) to initiate service of
19 the summons and third amended complaint on sixteen defendants.

Fifteen of the sixteen

20 defendants waived service and filed an answer to the third amended complaint on December 8,
21 2015. However, service was returned unexecuted as to Defendant Cisco. The USM was not able
22 to identify this defendant.
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Rule 4(m) provides:

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If a defendant is not served within 90 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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27 Fed. R. Civ. P. 4(m).

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Prior to December 1, 2015, Rule 4(m) provided for 120 days.

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In cases involving a plaintiff proceeding in forma pauperis, the USM, upon order of the

2 Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
3 “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S.
4 Marshal for service of the summons and complaint and [he] should not be penalized by having his
5 action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to
6 perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations
7 and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So
8 long as the prisoner has furnished the information necessary to identify the defendant, the
9 marshal’s failure to effect service is automatically good cause….” Walker, 14 F.3d at 1422
10 (internal quotations and citation omitted). However, where a pro se plaintiff fails to provide the
11 Marshal with accurate and sufficient information to effect service of the summons and complaint,
12 the Court’s sua sponte dismissal of the unserved defendants is appropriate. Id. at 1421-22.
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In this case, the USM was unable to identify anyone named Cisco. To the extent that

14 Cisco is the nickname of a former employee named Francisco Hernandez, Mr. Hernandez is no
15 longer employed at the prison and there is no forwarding address for him. 2 Referral of the matter
16 to a Special Investigator with the California Department of Corrections and Rehabilitation to
17 locate Mr. Hernandez was unsuccessful. Based on this information, the USM appears to have
18 exhausted the avenues available to it in attempting to locate and serve Defendant Cisco. Walker,
19 14 F.3d at 1421-22. Plaintiff shall be provided with an opportunity to show cause why Defendant
20 Cisco should not be dismissed. Fed. R. Civ. P. 4(m). If Plaintiff either fails to respond to this
21 order or responds but fails to show good cause, Defendant Cisco shall be dismissed from this
22 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 Cisco should not be dismissed from this action; and

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Whether Cisco is Francisco Hernandez is not clear but at this juncture, the burden is on Plaintiff to provide sufficient
information for the USM to identify and locate this defendant.

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2.

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

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IT IS SO ORDERED.

5 Dated:

December 24, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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