Shehee v. Perez et al

Filing 54

ORDER to SHOW CAUSE why Defendant Lain Should not be Dismissed from this Action for Failure to Provide Sufficient Information to Effectuate Service signed by Magistrate Judge Barbara A. McAuliffe on 08/27/2018. Show Cause Response due by 10/1/2018.(Flores, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

GREGORY ELL SHEHEE,

Case No. 1:16-cv-01346-AWI-BAM (PC)

12

Plaintiff,

ORDER TO SHOW CAUSE WHY
DEFENDANT LAIN SHOULD NOT BE
DISMISSED FROM THIS ACTION FOR
FAILURE TO PROVIDE SUFFICIENT
INFORMATION TO EFFECTUATE
SERVICE

13
14

v.
PEREZ, et al.,

15

Defendants.
(ECF Nos. 50, 52)

16

THIRTY (30) DAY DEADLINE

17
18

I.

Introduction

19

Plaintiff Gregory Ell Shehee (“Plaintiff”) is a former county jail inmate proceeding pro se

20

in this civil rights action under 42 U.S.C. § 1983. Plaintiff was a civil detainee at the time of the

21

events at issue. This action proceeds on Plaintiff’s first amended complaint against Defendant

22

Perez for excessive force in violation of the Fourteenth Amendment and against Defendant Lain

23

for failure to protect in violation of the Fourteenth Amendment.

24

II.

Service by the United States Marshal

25

On July 18, 2018, the Court issued an order directing the United States Marshal to initiate

26

service of process in this action upon Defendants Perez and Lain. (ECF No. 49.) On August 15,

27

2018, the United States Marshal filed a return of service unexecuted as to Defendant Lain. (ECF

28

No. 50.) Upon review of the subpoena, the Court ordered the Marshal to attempt re-service using
1

1

a different spelling of Defendant Lain’s name, and providing further information regarding

2

Defendant Lain’s job title and assignment during the events in question. (ECF No. 51.) On

3

August 21, 2018, the Marshal again filed a return of service unexecuted as to Defendant Lain.

4

(ECF No. 52.)

5

Federal Rule of Civil Procedure 4(m) provides as follows:

6

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.

7
8
9
10

Fed.R.Civ.P. 4(m).

11

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

12

court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro

13

se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the

14

summons and complaint, and . . . should not be penalized by having his or her action dismissed

15

for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the

16

duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So

17

long as the prisoner has furnished the information necessary to identify the defendant, the

18

marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d

19

1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115

20

(1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and

21

sufficient information to effect service of the summons and complaint, the Court’s sua sponte

22

dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22.

23

Here, the U.S. Marshal attempted to serve Defendant Lain with the information that

24

Plaintiff provided. However, the Marshal was twice informed that the Department of State

25

Hospitals – Coalinga does not and has never had an employee by the name of Jerri Lady, Jerri

26

Lain, or Jirri Lan. (ECF Nos. 50, 52.) Plaintiff therefore has not provided sufficient information

27

to identify and locate Defendant Lain for service of process. If Plaintiff is unable to provide the

28

Marshal with the necessary information to identify and locate this defendant, Defendant Lain
2

1

shall be dismissed from this action, without prejudice. Pursuant to Rule 4(m), the Court will

2

provide Plaintiff with the opportunity to show cause why Defendant Lain should not be dismissed

3

from the action at this time.

4

III.

5

Based on the foregoing, it is HEREBY ORDERED that:

6

1.

7
8
9

Conclusion and Order

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

cause why Defendant Lain should not be dismissed from this action; and
2.

The failure to respond to this order or the failure to show cause will result in the

dismissal of Defendant Lain from this action.

10
11
12

IT IS SO ORDERED.
Dated:

/s/ Barbara

August 27, 2018

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3