Scally v. Arsaunt et al

Filing 26

ORDER Directing Plaintiff to SHOW CAUSE Why Defendant "Berry" Should Not Be Dismissed From Action, signed by Magistrate Judge Michael J. Seng on 6/27/17: 14-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY EUGENE SCALLY,

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Plaintiff,
v.
N. ARSUANT,
Defendant.

Case No. 1:16-cv-01237-MJS
ORDER DIRECTING PLAINTIFF TO
SHOW CAUSE WHY DEFENDANT
“BERRY” SHOULD NOT BE DISMISSED
FROM ACTION
FOURTEEN DAY DEADLINE

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Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights
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action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s First

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Amendment religious exercise and Fourteenth Amendment Equal Protection claims
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against Defendants Sergeants Arsaunt and Berry of California State Prison (“CSP”) in

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Corcoran, California.
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As the first attempt at service on Defendant Berry was returned unexecuted (ECF
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No. 18), the Court directed the United States Marshal (“USM”) to contact the Litigation

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Coordinator at CSP to request his or her assistance in locating Defendant Berry. (ECF
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No. 19.) On May 15, 2017, the summons was again returned unexecuted; in the remarks
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section of the USM-285, the Marshal wrote “Per the Litigation Coordinator, CSP

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Corcoran has never employed a Sgt. Berry. This was confirmed by personnel. They also

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checked all logs Nov. 2015. They will not accept service.” (ECF No. 20.) Thus, on May

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16, 2017, Plaintiff was directed to provide, within thirty days, further information to help

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the USM locate and serve Defendant Berry. (ECF No. 22.) The thirty days have elapsed

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and Plaintiff has provided no further information.

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In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon

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order of the Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d);

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Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is

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entitled to rely on the U.S. Marshals for service of the summons and complaint and [he]

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should not be penalized by having his action dismissed for failure to effect service where

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the U.S. Marshal or the court clerk has failed to perform his duties.” Walker v. Sumner,

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14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations and citation omitted), overruled

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on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner

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has furnished the information necessary to identify the defendant, the marshal’s failure

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to effect service is automatically good cause. . . .” Walker, 14 F.3d at 1422 (internal

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quotations and citation omitted). However, where a pro se plaintiff fails to provide the

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Marshal with accurate and sufficient information to effect service of the summons and

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complaint, the Court’s sua sponte dismissal of the unserved defendants is appropriate.

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Walker, 14 F.3d at 1421-22.

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At this time, the Marshals Service has exhausted the avenues available to it to

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locate and serve Defendant Berry. See Walker, 14 F.3d at 1421-22. Accordingly, Plaintiff

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shall be required to show cause why Defendant Berry should not be dismissed based on

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inability to effect service on them. Fed. R. Civ. P. 4(m). If Plaintiff either fails to respond

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to this order or responds but fails to show cause, the Court will dismiss Defendant Berry

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from the action.

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Based on the foregoing, it is HEREBY ORDERED that:

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1. Within fourteen (14) days from the date of service of this order, Plaintiff

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shall show cause why Defendant Berry should not be dismissed from this

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action; and

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2. If Plaintiff fails to respond to this order or fails to show cause, the Court will

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dismiss Defendant Berry from this action.

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IT IS SO ORDERED.
Dated:

June 27, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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