Quiroga v. Chapa

Filing 37

SECOND ORDER TO SHOW CAUSE WHY THE ACTION SHOULD NOT BE DISMISSED, WITHOUT PREJUDICE, PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(M) signed by Magistrate Judge Stanley A. Boone on 4/11/2017. Show Cause Response due by 5/15/2017. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MONICO J. QUIROGA, 12 13 14 15 16 17 Plaintiff, v. C. CHAPA, Defendant. ) ) ) ) ) ) ) ) ) ) Case No. 1:16-cv-00071-SAB (PC) SECOND ORDER TO SHOW CAUSE WHY THE ACTION SHOULD NOT BE DISMISSED, WITHOUT PREJUDICE, PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(M) [ECF No. 36] Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 18 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of the United States 19 Magistrate Judge on February 16, 2016. Local Rule 302. 20 21 22 This action is proceeding on Plaintiff’s amended complaint against Defendant C. Chapa for sexual assault in violation of the Fourteenth Amendment. On May 23, 2016, the Court ordered the United States Marshal to service the summons and 23 complaint on Defendant Chapa. However, the Marshal was not able to locate Defendant Chapa and 24 service was returned un-executed on October 6, 2016. It was noted that C. Chapa was no longer 25 employed by Kern County. On December 12, 2016, the Court issued a second order directing the 26 United States Marshal to serve Defendant C. Chapa and to review personnel and/or county/state 27 records to ascertain Chapa’s current address of record. 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 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 6 Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 7 “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 8 for service of the summons and complaint and [he] should not be penalized by having his action 9 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform 10 11 12 13 his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to effect service is automatically good cause. . . .” Walker, 14 F.3d at 1422 (internal quotations and 14 citation omitted). However, where a pro se plaintiff fails to provide the Marshal with accurate and 15 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 16 dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22. 17 On April 11, 2017, the summons was returned unexecuted. (ECF No. 36.) On the form, the 18 Marshal notes that the address provided was for sale and appeared vacant. Contact was made with the 19 agent selling the house who stated the house has been vacant since January and he/she did not 20 recognize the Defendant’s name. (Id.) At this juncture, the Marshal’s Office has exhausted the 21 avenues available to it in attempting to locate and serve Defendant Chapa. Walker, 14 F.3d at 142122 22. Plaintiff shall be provided with an opportunity to show cause why the action should not be 23 dismissed for failure to serve and locate Defendant Chapa. Fed. R. Civ. P. 4(m). If Plaintiff either 24 fails to respond to this order or responds but fails to show cause, this action will be dismissed, without 25 prejudice. 26 /// 27 /// 28 2 1 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 2 1. 3 why this action should not be dismissed; and 2. 4 5 Within thirty (30) days from the date of service of this order, Plaintiff shall show cause The failure to respond to this order or the failure to show cause will result in the dismissal of this action. 6 7 IT IS SO ORDERED. 8 Dated: 9 April 11, 2017 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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