Moore v. City of Shafter Corrections et al

Filing 28

ORDER to SHOW CAUSE why Defendant Ardon should not be dismissed (Rule4(m) and the Action Closed 25 , signed by Magistrate Judge Sheila K. Oberto on 1/10/18. Show Cause Response due (21-Day Deadline)(Martin-Gill, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CHRISTY V. MOORE, 10 11 12 13 Case No. 1:16-cv-00145-DAD-SKO (PC) Plaintiff, v. CITY OF SHAFTER, et al., Defendants. ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY DEFENDANT ARDON SHOULD NOT BE DISMISSED (RULE 4(m)) and THE ACTION CLOSED (Doc. 25) 14 TWENTY-ONE (21) DAY DEADLINE 15 16 17 18 19 20 Plaintiff, Christy V. Moore, a state prisoner, proceeds pro se and in forma pauperis in this action pursuant to 42 U.S.C. § 1983 which was filed on February 1, 2016. This action is proceeding on Plaintiff’s claim for violation of her rights under the Eight Amendment against Defendant Ardon. (See Docs. 11, 16, 17.) However, the Marshal was not able to locate Defendant Ardon and service was returned un-executed on November 13, 2017. (Doc. 24.) 21 Rule 4(m) of the Federal Rules of Civil Procedure provides: 22 23 24 25 26 27 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. In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. 28 1 1 Marshal for service of the summons and complaint and should not be penalized by having his 2 action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed 3 to perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations 4 and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). 5 “So long as the prisoner has furnished the information necessary to identify the defendant, the 6 marshal’s failure to effect service is automatically good cause. . . .” Walker, 14 F.3d at 1422 7 (internal quotations and citation omitted). However, where a pro se plaintiff fails to provide the 8 Marshal with accurate and sufficient information to effect service of the summons and complaint, 9 the Court’s sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 10 1421-22. At this juncture, the Marshal’s Office has exhausted the available avenues in attempting to 11 12 locate and serve Defendant Ardon.1 Walker, 14 F.3d at 1421-22. On November 16, 2017, 13 Plaintiff was ordered to provide additional information to assist with effecting service on 14 Defendant Ardon, (Doc. 25); however, no additional information has been provided to date. 15 Plaintiff must show cause why Defendant Ardon should not be dismissed from this action. 16 Fed. R. Civ. P. 4(m). If Plaintiff either fails to respond to this order, or responds but fails to show 17 cause, Defendant Ardon and all claims against her shall be dismissed from this action. This will 18 result in dismissal of the entire action since Ardon is the only remaining defendant. Based on the foregoing, it is HEREBY ORDERED that: 19 1. 20 Within twenty-one (21) days from the date of service of this order, Plaintiff shall 21 show cause why Defendant Ardon and all claims against her should not be 22 dismissed from this action; and 2. 23 The failure to respond to this order or the failure to show cause will result in a 24 recommendation that Defendant Ardon and all claims against her be dismissed 25 from this action—which will result in case closure. 26 27 1 28 The Marshal’s Office contacted the California Department of Corrections and Rehabilitation and was informed that Defendant Ardon left employment with the CDCR in 2015 and that no forwarding address is available. (Doc. 24.) 2 1 2 IT IS SO ORDERED. Dated: January 10, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 3 4 5 6 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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