Garrett v. Davey, et al.

Filing 15

ORDER for Plaintiff to SHOW CAUSE Why Defendant Gonzalez Should Not Be Dismissed From This Action Without Prejudice Because of Plaintiff's Failure to Provide the Marshal With Accurate and Sufficient Information to Effect Service of the Summons and Complaint on Defendant Gonzalez signed by Magistrate Judge Erica P. Grosjean on 4/24/2017. Show Cause Response due within thirty (30) days. (Jessen, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 Case No. 1:16-cv-00636 -EPG (PC) MARCUS LEWIS GARRETT, 11 Plaintiff, 16 ORDER FOR PLAINTIFF TO SHOW CAUSE WHY DEFENDANT GONZALEZ SHOULD NOT BE DISMISSED FROM THIS ACTION WITHOUT PREJUDICE BECAUSE OF PLAINTIFF’S FAILURE TO PROVIDE THE MARSHAL WITH ACCURATE AND SUFFICIENT INFORMATION TO EFFECT SERVICE OF THE SUMMONS AND COMPLAINT ON DEFENDANT GONZALEZ (ECF NO. 14) 17 THIRTY DAY DEADLINE 12 13 v. D. DAVEY and GONZALEZ, 14 Defendants. 15 18 19 I. RELEVANT PROCEDURAL HISTORY 20 Marcus Lewis Garrett (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on 22 Plaintiff’s First Amended Complaint against defendants Davey and Gonzalez for failure to 23 protect in violation of the Eighth Amendment. (ECF Nos. 10 & 11). 24 After Plaintiff completed and returned the appropriate service documents (ECF No. 12), 25 the Court ordered the United States Marshal Service (“the Marshal”) to serve the defendants 26 (ECF No. 13). However, the summons for defendant Gonzalez was returned unexecuted. 27 (ECF No. 14). According to the Marshal, the “L/O at Corcoran State Prison” informed the 28 Marshal that “no Lt. E. Gonzalez has ever worked at that facility.” (Id.). 1 1 II. SERVICE BY UNITED STATES MARSHAL 2 Pursuant to Federal Rule of Civil Procedure 4(m), 3 If a defendant is not served within 90 days after the complaint is filed, the court B on motion or on its own after notice to the plaintiff B 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. 4 5 6 Fed. R. Civ. P. 4(m). 7 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 8 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “‘[A]n 9 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 10 for service of the summons and complaint and ... should not be penalized by having his action 11 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 12 perform his duties….’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett 13 v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other 14 grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has furnished the 15 information necessary to identify the defendant, the marshal=s failure to effect service is 16 >automatically good cause….’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 17 F.2d 598, 603 (7th Cir.1990)). However, where a pro se plaintiff fails to provide the Marshal 18 with accurate and sufficient information to effect service of the summons and complaint, 19 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421-22. 20 The return of service filed by the Marshal on March 7, 2017, indicates that, according to 21 the “L/O at Corcoran State Prison, no Lt. E. Gonzalez has ever worked at” Corcoran State 22 prison. (ECF No. 14). There is no indication on the return of service that the Marshal received 23 a response from defendant Gonzalez. (Id.). The Marshal certified that the Marshal was unable 24 to locate defendant Gonzalez. (Id.). 25 Pursuant to Rule 4(m), the Court will provide Plaintiff with an opportunity to show 26 cause why defendant Gonzalez should not be dismissed from the case because of Plaintiff’s 27 failure to provide the Marshal with accurate and sufficient information to effect service of the 28 summons and complaint on defendant Gonzalez. If Plaintiff is unable to provide the Marshal 2 1 with additional information, the Court will dismiss defendant Gonzalez from the case, without 2 prejudice. 3 III. CONCLUSION 4 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 5 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show 6 cause why the Court should not dismiss defendant Gonzalez from this action, 7 without prejudice, pursuant to Federal Rule of Civil Procedure 4(m); and 8 2. Failure to respond to this order may result in defendant Gonzalez being dismissed 9 from this action, without prejudice. 10 11 12 IT IS SO ORDERED. Dated: April 24, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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