Gonzalez v. The Fresno Sheriff's Department et al

Filing 52

ORDER to SHOW CAUSE Why Defendant Scott should not be Dismissed from this Action for Failure to Provide Sufficient Information to Effectuate Service; Show Cause Response due within Thirty (30) Days signed by Magistrate Judge Barbara A. McAuliffe on 1/9/2018. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL HERNANDEZ GONZALEZ, 12 Plaintiff, 13 14 15 v. THE FRESNO SHERIFF’S DEPARTMENT, et al., Defendants. 16 Case No. 1:15-cv-01200-BAM (PC) ORDER TO SHOW CAUSE WHY DEFENDANT SCOTT SHOULD NOT BE DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT INFORMATION TO EFFECTUATE SERVICE (ECF No. 51) THIRTY (30) DAY DEADLINE 17 18 I. Introduction 19 Plaintiff Michael Hernandez Gonzalez (“Plaintiff”), a pretrial detainee at the time of the 20 incident and currently a state prisoner proceeding pro se and in forma pauperis, initiated this civil 21 rights action pursuant to 42 U.S.C. § 1983 on August 3, 2015. This action proceeds on Plaintiff’s 22 fourth amended complaint against Defendants Mims, Gutierrez, Scott, Palacios, and Nemoto for 23 failing to protect Plaintiff in violation of the Fourteenth Amendment, arising from Defendants’ 24 failure to investigate Plaintiff’s subsequent placements in holding cells, after the initial beating on 25 or about October 20, 2012, including upon Plaintiff’s return from Atascadero. This matter was 26 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 27 302. 28 /// 1 1 II. 2 On December 18, 2017, following the filing of Plaintiff’s fourth amended complaint, the Service by the United States Marshal 3 Court issued an order directing the United States Marshal to initiate service of process in this 4 action upon Defendants Gutierrez, Scott, Palacios, and Nemoto. (ECF No. 46.) On January 8, 5 2018, the United States Marshal filed a return of service unexecuted as to Defendant Scott. (ECF 6 No. 51.) 7 Federal Rule of Civil Procedure 4(m) provides as follows: 8 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. 9 10 11 12 Fed.R.Civ.P. 4(m). 13 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 14 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 15 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 16 summons and complaint, and . . . should not be penalized by having his or her action dismissed 17 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 18 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 19 long as the prisoner has furnished the information necessary to identify the defendant, the 20 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 21 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 22 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 23 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 24 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 25 Here, the U.S. Marshal attempted to serve Defendant Scott with the information that 26 Plaintiff provided. However, the Marshal was informed that Defendant Scott is no longer 27 employed by the Fresno County Jail, and no forwarding information was available. (ECF No. 28 51.) Plaintiff therefore has not provided sufficient information to identify and locate Defendant 2 1 Scott for service of process. If Plaintiff is unable to provide the Marshal with the necessary 2 information to identify and locate this defendant, Defendant Scott shall be dismissed from this 3 action, without prejudice. Pursuant to Rule 4(m), the Court will provide Plaintiff with the 4 opportunity to show cause why Defendant Scott should not be dismissed from the action at this 5 time. 6 III. 7 Based on the foregoing, it is HEREBY ORDERED that: 8 1. 9 10 11 Conclusion and Order Within thirty (30) days from the date of service of this order, Plaintiff shall show cause why Defendant Scott 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 Scott from this action. 12 13 14 IT IS SO ORDERED. Dated: /s/ Barbara January 9, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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