Rhodes v. Fresno County, et al.
Filing
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ORDER DISMISSING Defendant Laure Rodriguez, Without Prejudice, Pursuant to Federal Rule of Civil Procedure 4(M) signed by Magistrate Judge Stanley A. Boone on 9/14/2017. (Jessen, A)
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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 DISMISSING DEFENDANT LAURE
RODRIGUEZ, WITHOUT PREJUDICE,
PURSUANT TO FEDERAL RULE OF CIVIL
PROCEDURE 4(M)
[ECF Nos. 54, 55, 58]
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.
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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. The Marshal certified that he/she was unable to
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locate Defendant Laure Rodriguez. (ECF No. 54.) Therefore, on August 16, 2017, the Court issued
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an order to show cause why Defendant Laure Rodriguez should not be dismissed pursuant to Federal
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Rule of Civil Procedure 4(m).
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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 The Court gave Plaintiff an opportunity
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to show good cause for the failure and although Plaintiff filed a response, he has failed to provide
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additional information to assist with serve on Defendant Laure Rodriguez. The Court’s August 16,
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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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2017, order to show cause forewarned Plaintiff that if he failed to respond or failed to show cause
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would result in dismissal of Defendant Rodriguez. (ECF No. 55.) Accordingly, it is hereby ordered
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that Defendant Laure Rodriguez is dismissed, without prejudice.
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IT IS SO ORDERED.
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Dated:
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September 14, 2017
UNITED STATES MAGISTRATE JUDGE
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