Solis v. County of Stanislaus et al

Filing 35

ORDER TO SHOW CAUSE WHY DEFENDANTS, ALBONETTI AND KING SHOULD NOT BE DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT INFORMATION TO EFFECTUATE SERVICE signed by Magistrate Judge Barbara A. McAuliffe on 4/22/2016. Show Cause Response due by 5/25/2016.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAVIER SOLIS,

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Plaintiff,

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v.

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QUIROZ, et al.,

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Defendants.

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Case No.: 1:14-cv-00937-DAD-BAM
ORDER TO SHOW CAUSE WHY DEFENDANTS
ALBONETTI AND KING SHOULD NOT BE
DISMISSED FROM THIS ACTION FOR FAILURE
TO PROVIDE SUFFICIENT INFORMATION TO
EFFECTUATE SERVICE
(Doc. 32)
THIRTY-DAY DEADLINE

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I.

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Plaintiff Javier Solis (“Plaintiff”), proceeding pro se and in forma pauperis, initiated this civil

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rights action pursuant to 42 U.S.C. § 1983 on June 19, 2014. This action proceeds on Plaintiff’s fourth

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amended complaint, filed on November 23, 2015, against the City of Ceres and against Defendants

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Griebel and Quiroz for excessive force in violation of the Fourth Amendment and Defendants

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Niewenhuis, King and Albonetti for failure to intercede.

Introduction

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II.

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On January 8, 2016, the Court issued an order directing the United States Marshal to initiate

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service of process in this action upon Defendants Griebel, Quiroz, Niewenhuis, King, Albonetti and

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the City of Ceres. (Doc. 20). Defendants City of Ceres, Griebel, Niewenhuis and Quiroz answered

Service by the United States Marshal

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the complaint on March 23, 2016. (Docs. 27-30). On March 31, 2016, the United States Marshal filed

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a return of service unexecuted as to Defendants Albonetti and King. (Doc. 32).
Federal Rule of Civil Procedure 4(m) provides as follows:

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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.
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
court, shall serve the summons and the complaint.

Fed. R. Civ. P. 4(c)(3).

A pro se litigant

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

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complaint. See, e.g., Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). Accordingly, delays or

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failures to effectuate service attributable to the Marshal are “automatically good cause within the

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meaning of Rule 4[m].’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other

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grounds by Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (citation

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omitted). However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient

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information to effect service of the summons and complaint, the Court’s sua sponte dismissal of the

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

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Here, the Marshal attempted to serve Defendants Albonetti and King at an address provided by

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Plaintiff for the City of Ceres Police Department.

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Defendants Albonetti and King were no longer employed at the address provided. (Doc. 23). To date,

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Plaintiff has not provided sufficient information to locate Defendants Albonetti and King for service of

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process.

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Albonetti and King shall be dismissed from this action without prejudice. Pursuant to Rule 4(m), the

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court will provide Plaintiff with the opportunity to show cause why Defendants Albonetti and King

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should not be dismissed from the action at this time. Plaintiff may do so by submitting additional

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information to effectuate service of the summons and complaint by the Marshal.

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However, the Marshal was informed that

If Plaintiff is unable to provide the Marshal with additional information, Defendants

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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 Defendants Albonetti and King 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 Defendants Albonetti and King from this action.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 22, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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