Rhodes v. Fresno County, et al.
Filing
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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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PERCY LEE RHODES,
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Plaintiff,
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v.
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FRESNO COUNTY, et al.,
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Defendants.
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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
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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of
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the United States Magistrate Judge on November 23, 2015. Local Rule 302.
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This action is proceeding on against Defendants Vivian, L. Her, Pat Alexander, K. Nunez,
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Jennifer Horton, Dr. Ravijot Gill and Laure Rodriguez for deliberate indifference to a serious medical
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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
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service was returned un-executed on August 14, 2017.
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Rule 4(m) of the Federal Rules of Civil Procedure provides:
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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.
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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. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
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“[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal
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for service of the summons and complaint and [he] should not be penalized by having his action
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dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform
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his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations and citation
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omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the
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prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to
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effect service is automatically good cause. . . .” Walker, 14 F.3d at 1422 (internal quotations and
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citation omitted). 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 defendants is appropriate. Walker, 14 F.3d at 1421-22.
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At this juncture, the United States Marshal’s office has exhausted the avenues available to it in
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attempting to locate and serve Defendant Laure Rodriguez.1 Walker, 14 F.3d at 1421-22. Plaintiff
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shall be provided with an opportunity to show cause why Defendant Rodriguez should not be
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dismissed. Fed. R. Civ. P. 4(m). If Plaintiff either fails to respond to this order or responds but fails to
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show cause, Defendant Rodriguez shall be dismissed from this action.
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Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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1.
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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
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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.)
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The failure to respond to this order or the failure to show cause will result in the
dismissal of Defendant Rodriguez from this action.
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IT IS SO ORDERED.
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Dated:
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August 16, 2017
UNITED STATES MAGISTRATE JUDGE
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