Rhodes v. Fresno County, et al.

Filing 55

ORDER to SHOW CAUSE Why Defendant Laure Rodriguez should not be Dismissed Pursuant to Rule 4(M) of the Federal Rules of Civil Procedures; Show Cause Response due within Thirty Days signed by Magistrate Judge Stanley A. Boone on 8/16/2017. (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 PERCY LEE RHODES, 12 Plaintiff, 13 v. 14 FRESNO COUNTY, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) Case No.: 1:15-cv-01714-SAB (PC) ORDER TO SHOW CAUSE WHY DEFENDANT LAURE RODRIGUEZ SHOULD NOT BE DISMISSED PURSUANT TO RULE 4(M) OF THE FEDERAL RULES OF CIVIL PROCEDURE [ECF No. 54] Plaintiff Percy Lee Rhodes is appearing pro se and in forma pauperis in this civil rights action 17 18 pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of 19 the United States Magistrate Judge on November 23, 2015. Local Rule 302. 20 This action is proceeding on against Defendants Vivian, L. Her, Pat Alexander, K. Nunez, 21 Jennifer Horton, Dr. Ravijot Gill and Laure Rodriguez for deliberate indifference to a serious medical 22 need, in violation of the Eighth Amendment of the United States Constitution. The United States Marshal was not able to locate or identify Defendant Laure Rodriguez and 23 24 service was returned un-executed on August 14, 2017. 25 /// 26 /// 27 /// 28 /// 1 1 Rule 4(m) of the Federal Rules of Civil Procedure provides: 2 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. 3 4 5 6 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 7 Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 8 “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 9 for service of the summons and complaint and [he] should not be penalized by having his action 10 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform 11 his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations and citation 12 omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the 13 prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to 14 effect service is automatically good cause. . . .” Walker, 14 F.3d at 1422 (internal quotations and 15 citation omitted). However, where a pro se plaintiff fails to provide the Marshal with accurate and 16 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 17 dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22. 18 At this juncture, the United States Marshal’s office has exhausted the avenues available to it in 19 attempting to locate and serve Defendant Laure Rodriguez.1 Walker, 14 F.3d at 1421-22. Plaintiff 20 shall be provided with an opportunity to show cause why Defendant Rodriguez should not be 21 dismissed. Fed. R. Civ. P. 4(m). If Plaintiff either fails to respond to this order or responds but fails to 22 show cause, Defendant Rodriguez shall be dismissed from this action. 23 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 24 1. 25 Within thirty (30) days from the date of service of this order, Plaintiff shall show cause why Defendant Rodriguez should not be dismissed from this action; and 26 27 28 1 The marshal’s office sought assistance from Lieutenant Porter at the Fresno County Sheriff’s Office who indicated that they do not have a Laure Rodriguez working for them. They do not have a forwarding address and will not accept service. (ECF No. 54.) 2 2. 1 2 The failure to respond to this order or the failure to show cause will result in the dismissal of Defendant Rodriguez from this action. 3 4 IT IS SO ORDERED. 5 Dated: 6 August 16, 2017 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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