Russell v. Perez et al

Filing 17

ORDER Dismissing Case without Prejudice and Directing Clerk of Court to Close Case, signed by Magistrate Judge Erica P. Grosjean on 11/8/16. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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

RODERICK BRYAN RUSSELL, JR.,
Plaintiff,

ORDER DISMISSING CASE WITHOUT
PREJUDICE AND DIRECTING CLERK OF
COURT TO CLOSE CASE
(ECF NO. 16)

v.
SONNY PEREZ,
Defendant.

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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 Marshals Service

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

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16, 2016, the Marshal filed a return of service unexecuted. (ECF No. 15). The Marshal

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indicated that the California Department of Corrections and Rehabilitation informed the

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Marshal that defendant Sonny Perez retired and did not leave a forwarding address. (Id.).

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Accordingly, the Court issued an order to show cause. (ECF No. 16). The order gave Plaintiff

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a thirty day deadline to show cause why the case should not be dismissed without prejudice

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pursuant to Federal Rule of Civil Procedure Rule 4(m). Plaintiff was warned that if he was

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unable to provide the Marshal with additional information that would allow the Marshal to

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locate the defendant, the case would be dismissed without prejudice. Plaintiff failed to respond

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within the deadline.

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Plaintiff has failed to follow a Court order to show cause or to provide any information

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to proceed with service. Additionally, this case cannot proceed on the current information

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available. It does not appear that Plaintiff has a location for the defendant in order to serve the

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complaint, CDCR does not appear to have information to locate the defendant, and the Court

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cannot order the Marshal to serve the defendant because Plaintiff did not provide any additional

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information.

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Accordingly, IT IS ORDERED that this case is DISMISSED, WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Clerk of Court is directed to close this case.

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IT IS SO ORDERED.
Dated:

November 8, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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