Russell v. Perez et al

Filing 16

ORDER for Plaintiff to SHOW CAUSE Why Case Should Not Be Dismissed Without Prejudice for Plaintiff's Failure to Effect Service 15 , signed by Magistrate Judge Erica P. Grosjean on 9/26/16: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No. 1:14-cv-00487-EPG (PC)

RODERICK BRYAN RUSSELL, JR.,

ORDER FOR PLAINTIFF TO SHOW
CAUSE WHY CASE SHOULD NOT BE
DISMISSED WITHOUT PREJUDICE
FOR PLAINTIFF’S FAILURE TO
EFFECT SERVICE
(ECF NO. 15)

v.
SONNY PEREZ; K. TOOR;
AND WOODWARD,
Defendants.

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THIRTY DAY DEADLINE

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I.

RELEVANT PROCEDURAL HISTORY

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Plaintiff, Roderick Bryan Russell, Jr., is a former state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the

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Complaint commencing this action on April 7, 2014. (ECF No. 1). This action now proceeds

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on the First Amended Complaint filed on February 17, 2015, against defendant Sonny Perez on

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claims for excessive force in violation of the Eighth Amendment and retaliation in violation of

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the First Amendment. (ECF Nos. 8 & 12).

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On May 3, 2016, the Court issued an order directing the United States Marshal

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(“Marshal”) to serve process upon defendant Sonny Perez. (ECF No. 14). On September 16,

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2016, the Marshal filed a return of service unexecuted, indicating that the Marshal was unable
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to locate defendant Sonny Perez for service of process. (ECF No. 15).

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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 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.

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Fed. R. Civ. P. 4(m). 1
In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of
the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2).

A>[A]n

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incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S.

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Marshal for service of the summons and complaint and ... 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

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failed to perform his duties.=@ Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting

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Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), overruled on other grounds by Sandin

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v. Connor, 515 U.S. 472 (1995). ASo long as the prisoner has furnished the information

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necessary to identify the defendant, the marshal=s failure to effect service is >automatically good

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cause . . . .=@ Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th

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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 defendant is appropriate. Walker, 14 F.3d at 1421-22.

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Background

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The return of service filed by the Marshal on September 16, 2016, indicates that,

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according to the CDCR, defendant Sonny Perez retired and did not leave a forwarding address.

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(ECF No. 15). There is no indication on the return of service that the Marshal received a

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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.
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response from defendant Sonny Perez. (Id.) The Marshal certified that he or she was unable to

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locate defendant Sonny Perez. (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 the case should not be dismissed for failure to serve process (the only remaining

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defendant in the case, defendant Sonny Perez, has not been served). Plaintiff has not provided

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sufficient information to identify and locate defendant Sonny Perez for service of process. If

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Plaintiff is unable to provide the Marshal with additional information the case shall be

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dismissed without prejudice.

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III.

CONCLUSION

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

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Within thirty (30) days from the date of service of this order, Plaintiff shall

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show cause why the case should not be dismissed without prejudice pursuant to

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Rule 4(m).

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IT IS SO ORDERED.
Dated:

September 26, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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