Ratcliff v. Akanno, et al.

Filing 21

ORDER to SHOW CAUSE Why Defendant Ogun Omolade Should Not be Dismissed Pursuant to Federal Rule of Civil Procedure 4(m), signed by Magistrate Judge Stanley A. Boone on 4/24/17. Show Cause Response Due Within Thirty Days. (Marrujo, C)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

WILLIAM RATCLIFF,

12

Plaintiff,

13
14

v.
J. AKANNO, et al.,

15

Defendants.

16

)
)
)
)
)
)
)
)
)
)

Case No.: 1:16-cv-00584-SAB (PC)
ORDER TO SHOW CAUSE WHY DEFENDANT
OGUN OMOLADE SHOULD NOT BE
DISMISSED PURSUANT TO FEDERAL RULE OF
CIVIL PROCEDURE 4(M)
[ECF No. 20]

Plaintiff William Ratcliff 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 May 5, 2016. Local Rule 302.

20

This action is proceeding against Defendants J. Akanno, M. Spaeth, Ogun Omolade, A.

21

Rangel, and A. Manasrah for deliberate indifference to Plaintiff’s health and safety in violation of the

22

Eighth Amendment.

23

On April 10, 2017, the Court directed the United States Marshal to serve the Defendants. On

24

April 18, 2017, the USM-285 form was returned unexecuted as to Defendant Ogun Omolade. (ECF

25

No. 20.)

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

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
The USM-285 form indicates that no one by the name and/or spelling of Ogun Omolade works
18
19

at Kern Valley State Prison and no such individual could be found in the global address book.1
At this juncture, the Marshal’s Office has exhausted the avenues available to it in attempting to locate

20
and serve Defendant Ogun Omolade. Walker, 14 F.3d at 1421-22. Plaintiff shall be provided with an
21
opportunity to show cause why Defendant Omolade should not be dismissed. Fed. R. Civ. P. 4(m). If
22
Plaintiff either fails to respond to this order or responds but fails to show cause, Defendant Omolade
23
will be dismissed, without prejudice.
24
///
25
///
26
27
28

1

The Marshal’s Office sought assistance from the Litigation Coordinator at Kern Valley State Prison.
(ECF No. 20.)
2

1

Accordingly, based on the foregoing, it is HEREBY ORDERED that:

2

1.

3

why Defendant Ogun Omolade 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 the dismissal

of Defendant Ogun Omolade without prejudice..

6
7

IT IS SO ORDERED.

8

Dated:

9

April 24, 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