Rushdan v. Davey et al.

Filing 45

ORDER for Plaintiff to SHOW CAUSE Why This Case Should Not Be Dismissed for His Failure to Effect Service Upon Defendant Casas 36 , signed by Magistrate Judge Gary S. Austin on 3/12/2019: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SALADIN RUSHDAN aka
ROBERT STANLEY WOODS,
Plaintiff,

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vs.

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D. DAVEY, et al.,
Defendants.

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I.

1:16-cv-00988-LJO-GSA-PC
ORDER FOR PLAINTIFF TO SHOW
CAUSE WHY THIS CASE SHOULD NOT
BE DISMISSED FOR HIS FAILURE TO
EFFECT SERVICE UPON DEFENDANT
CASAS
(ECF No. 36.)
THIRTY DAY DEADLINE

BACKGROUND

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Saladan Rushdan, aka Robert Stanley Woods (“Plaintiff”), is a state prisoner proceeding

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pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff paid the filing fee for

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this case on January 24, 2017, and therefore he is not proceeding in forma pauperis in this case.

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(ECF No. 21.)

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This case now proceeds with Plaintiff’s Second Amended Complaint filed on March 9,

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2018, against defendant Correctional Officer Casas (“Defendant”) for use of excessive force in

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violation of the Eighth Amendment and related state claims. (ECF No. 28.)

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On October 16, 2018, the court issued an order directing Plaintiff to serve defendant Casas

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with a summons and copy of the Second Amended Complaint. (ECF No. 36.) Plaintiff is not

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proceeding in forma pauperis in this case and is therefore responsible for serving process himself.

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Plaintiff was provided with the documents and instructions needed to serve process and was
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ordered to complete service of process within ninety days. (Id.) Plaintiff was advised that after

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service of process is completed he is required to file with the court a proof of service, or waiver

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of service form, demonstrating that service has been completed. The ninety-day time period has

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expired and Plaintiff has not filed a proof of service, waiver of service form, or any other response

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to the court’s order.

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II.

SERVICE OF PROCESS -- RULE 4

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Rule 4 of the Federal Rule of Civil Procedure governs service of process. If a plaintiff is

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proceeding in forma pauperis, the court is required to direct the United States marshal to serve

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process on behalf of the plaintiff. Fed. R. Civ. P. 4(c)(3). Otherwise, “[t]he plaintiff [himself or

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herself] is responsible for having the summons and complaint served within the time allowed by

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Rule 4(m).” Fed. R. Civ. P. 4(c)(1). “Any person who is at least 18 years old and not a party

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may serve a summons and complaint.” Fed. R. Civ. P. 4(c)(2).

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Pursuant to Rule 4(m), “[i]f a defendant is not served within 90 days after the complaint

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is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action

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without prejudice against that defendant or order that service be made within a specified time.

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But if the plaintiff shows good cause for the failure, the court must extend the time for service

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for an appropriate period.” Fed. R. Civ. P. 4(m). Moreover, “[a]t the plaintiff’s request, the court

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may order that service be made by a United States marshal or deputy marshal or by a person

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specially appointed by the court.” Fed. R. Civ. P. (c)(3).

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Here, Plaintiff failed to comply with the ninety-day deadline to serve process upon

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defendant Casas. Therefore, the court now issues an order for Plaintiff to show cause why this

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case should not be dismissed for his failure to timely effect service upon defendant Casas.

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III.

ORDER TO SHOW CAUSE

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Within thirty (30) days from the date of service of this order, Plaintiff shall file

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a written response to this order, showing cause why the court should not dismiss

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this case in its entirety based on Plaintiff’s failure to timely serve process upon

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defendant Casas; and
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2.

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The failure to respond to this order or the failure to show cause will result in the
dismissal of this action in its entirety.

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IT IS SO ORDERED.
Dated:

March 12, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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