Hackett v. Fisher et al

Filing 20

ORDER DISMISSING Defendant Stolfus for Failure to Provide Sufficient Information to Effectuate Service 19 , signed by Magistrate Judge Barbara A. McAuliffe on 12/20/16: Defendant Stolfus is DISMISSED from this action, without prejudice. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHEN HACKETT, 12 13 14 15 Plaintiff, v. Case No. 1:15-cv-00670-BAM (PC) ORDER DISMISSING DEFENDANT STOLFUS FOR FAILURE TO PROVIDE SUFFICIENT INFORMATION TO EFFECTUATE SERVICE RAYMOND FISHER, et al., (ECF No. 19) Defendants. 16 17 Plaintiff Stephen Hackett (“Plaintiff”) is a state prisoner proceeding pro se in this civil 18 rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on May 1, 2015. (ECF No. 1.) 19 This action proceeds on Plaintiff’s second amended complaint, filed on August 30, 2016, for 20 deliberate indifference to a serious medical need in violation of the Eighth Amendment against 21 defendant K. Toor, and for state law negligence against defendants K. Toor, L. Stolfus, and C. 22 Sisodia (“Defendant(s)”). Plaintiff filed a consent to magistrate judge jurisdiction on May 14, 23 2015. (ECF No. 4.) 24 On September 21, 2016, following screening of the second amended complaint, the Court 25 issued an order directing the United States Marshal to initiate service of process in this action 26 upon Defendants Toor, Stolfus, and Sisodia (ECF No. 17). On November 9, 2016, the United 27 States Marshal filed a return of service unexecuted as to Defendant Stolfus (ECF No. 18). On 28 November 10, 2016, the Court issued an order to show cause within thirty (30) days why 1 1 Defendant Stolfus should not be dismissed from this action for failure to provide sufficient 2 information to effectuate service. (ECF No. 19.) The deadline for Plaintiff to comply with the 3 order to show cause has passed, and Plaintiff has not complied. 4 Federal Rule of Civil Procedure 4(m) provides as follows: 5 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. 6 7 8 Fed.R.Civ.P. 4(m). Where a pro se plaintiff fails to provide the Marshal with accurate and 9 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 10 dismissal of the unserved defendant is appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th 11 Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293, 132 12 L.Ed.2d 418 (1995). 13 Plaintiff failed to provide sufficient information to locate Defendant Stolfus for service of 14 process. Plaintiff was ordered to submit documents to effect service on September 21, 2016. 15 Plaintiff submitted the necessary documents, and the Court directed service by the United States 16 Marshal on October 26, 2016. The Marshal filed a return of service unexecuted for Defendant 17 Stolfus on November 9, 2016, which indicated that, per the CDCR, Defendant Stolfus was not an 18 employee, and that the contract company stated Defendant Stolfus was “no longer there.” (ECF 19 No. 18.) In compliance with Rule 4(m), Plaintiff was provided with the opportunity to show 20 cause why Defendant Stolfus should not be dismissed from this action, and to provide additional 21 information to locate Defendant Stolfus. Plaintiff failed to respond to this Court’s order, and 22 failed to show cause why Defendant Stolfus should not be dismissed from this action. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 2 1 Accordingly, Defendant Stolfus is HEREBY DISMISSED from this action, without 2 prejudice, based on Plaintiff’s failure to effect service of the summons and complaint as required 3 by Federal Rule of Civil Procedure 4(m). 4 5 6 IT IS SO ORDERED. Dated: /s/ Barbara December 20, 2016 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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