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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DERRICK JESUS ODEN,

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Plaintiff,

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v.
STATE OF CALIFORNIA, et al.,

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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)

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THIRTY (30) DAY DEADLINE

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I.

Introduction

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Plaintiff Derrick Jesus Oden (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, initiated this civil rights action pursuant to 42 U.S.C. § 1983 on June 9, 2014. This

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action proceeds on Plaintiff’s third amended complaint, filed on September 16, 2015, against

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Defendants J. Acebedo, S. Swaim, and R. Thomas for deliberate indifference to a serious risk in

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violation of the Eighth Amendment.

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II.

Service by the United States Marshal

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On August 7, 2017, following screening of the third amended complaint, the Court issued

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an order directing the United States Marshal to initiate service of process in this action upon

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Defendants Acebedo, Swaim, and Thomas. (ECF No. 37.) On October 10, 2017, the United

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States Marshal filed a return of service unexecuted as to Defendant Thomas. (ECF No. 39.)
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Federal Rule of Civil Procedure 4(m) provides as follows:

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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.

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Fed.R.Civ.P. 4(m).

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

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court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro

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se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the

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summons and complaint, and . . . should not be penalized by having his or her action dismissed

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

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duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So

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

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marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d

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1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115

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(1995). 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.
Here, the U.S. Marshal attempted to serve Defendant Thomas with the information that

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Plaintiff provided. However, the Marshal was informed that Defendant Thomas is not employed

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at North Kern State Prison or Kern Valley State Prison. (ECF No. 39.) Plaintiff therefore has not

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provided sufficient information to identify and locate Defendant Thomas for service of process.

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If Plaintiff is unable to provide the Marshal with the necessary information to identify and locate

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this defendant, Defendant Thomas shall be dismissed from this action, without prejudice.

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Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause why

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Defendant Thomas should not be dismissed from the action at this time.

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III.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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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
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The failure to respond to this order or the failure to show cause will result in the

dismissal of Defendant Thomas from this action.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 12, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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