Oden v. State of California, et al.

Filing 41

ORDER to SHOW CAUSE Why Defendant Thomas Should Not Be Dismissed From This Action for Failure to Provide Sufficient Information to Effectuate Service signed by Magistrate Judge Barbara A. McAuliffe on 10/12/2017. Show Cause Response due within thirty (30) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DERRICK JESUS ODEN, 12 Plaintiff, 13 14 v. STATE OF CALIFORNIA, et al., 15 Case No. 1:14-cv-00873-LJO-BAM (PC) ORDER TO SHOW CAUSE WHY DEFENDANT THOMAS SHOULD NOT BE DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT INFORMATION TO EFFECTUATE SERVICE Defendants. (ECF No. 39) 16 THIRTY (30) DAY DEADLINE 17 18 I. Introduction 19 Plaintiff Derrick Jesus Oden (“Plaintiff”), a state prisoner proceeding pro se and in forma 20 pauperis, initiated this civil rights action pursuant to 42 U.S.C. § 1983 on June 9, 2014. This 21 action proceeds on Plaintiff’s third amended complaint, filed on September 16, 2015, against 22 Defendants J. Acebedo, S. Swaim, and R. Thomas for deliberate indifference to a serious risk in 23 violation of the Eighth Amendment. 24 II. Service by the United States Marshal 25 On August 7, 2017, following screening of the third amended complaint, the Court issued 26 an order directing the United States Marshal to initiate service of process in this action upon 27 Defendants Acebedo, Swaim, and Thomas. (ECF No. 37.) On October 10, 2017, the United 28 States Marshal filed a return of service unexecuted as to Defendant Thomas. (ECF No. 39.) 1 1 Federal Rule of Civil Procedure 4(m) provides as follows: 2 If 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. 3 4 5 6 Fed.R.Civ.P. 4(m). 7 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 8 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 9 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 10 summons and complaint, and . . . should not be penalized by having his or her action dismissed 11 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 12 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 13 long as the prisoner has furnished the information necessary to identify the defendant, the 14 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 15 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 16 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 17 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 18 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. Here, the U.S. Marshal attempted to serve Defendant Thomas with the information that 19 20 Plaintiff provided. However, the Marshal was informed that Defendant Thomas is not employed 21 at North Kern State Prison or Kern Valley State Prison. (ECF No. 39.) Plaintiff therefore has not 22 provided sufficient information to identify and locate Defendant Thomas for service of process. 23 If Plaintiff is unable to provide the Marshal with the necessary information to identify and locate 24 this defendant, Defendant Thomas shall be dismissed from this action, without prejudice. 25 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause why 26 Defendant Thomas should not be dismissed from the action at this time. 27 /// 28 /// 2 1 III. 2 Based on the foregoing, it is HEREBY ORDERED that: 3 1. 4 5 6 Conclusion and Order Within thirty (30) days from the date of service of this order, Plaintiff shall show cause why Defendant Thomas should not be dismissed from this action; and 2. The failure to respond to this order or the failure to show cause will result in the dismissal of Defendant Thomas from this action. 7 8 9 IT IS SO ORDERED. Dated: /s/ Barbara October 12, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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