Johnson v. North Kern State Prison et al

Filing 20

ORDER to SHOW CAUSE Why Defendants Rocha, Jones, and Mrs. K Should Not be Dismissed From This Action for Failure to Provide Sufficient Information to Effectuate Service, signed by Magistrate Judge Barbara A. McAuliffe on 1/26/17. Show Cause Response Due Within Thirty Days. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CEDRIC CHESTER JOHNSON, 12 13 Plaintiff, v. 14 NORTH KERN STATE PRISON, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-01371-DAD-BAM (PC) ORDER TO SHOW CAUSE WHY DEFENDANTS ROCHA, JONES, AND MRS. K SHOULD NOT BE DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT INFORMATION TO EFFECTUATE SERVICE (ECF No. 19) THIRTY-DAY DEADLINE 17 I. Introduction 18 Plaintiff Cedric Chester Johnson (“Plaintiff”), a state prisoner proceeding pro se and in forma 19 pauperis, initiated this civil rights action under 42 U.S.C. § 1983 on September 6, 2016. This action 20 proceeds on Plaintiff’s first amended complaint for deliberate indifference in violation of the Eighth 21 Amendment against Defendants Speakman, Rocha, Jones and Mrs. K. (“Defendants”). 22 II. 23 On December 28, 2016, following screening of the first amended complaint, the Court issued 24 an order directing the United States Marshal to initiate service of process in this action upon 25 Defendants Speakman, Rocha, Jones and Mrs. K. (ECF No. 18). On January 24, 2017, the United 26 States Marshal filed returns of service unexecuted as to Defendants Rocha, Jones and Mrs. K. (ECF 27 No. 19). 28 Service by the United States Marshal Federal Rule of Civil Procedure 4(m) provides as follows: 1 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. 1 2 3 4 5 Fed. R. Civ. P. 4(m). In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 6 7 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). A pro se litigant 8 proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and 9 complaint. See, e.g., Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). Accordingly, delays or 10 failures to effectuate service attributable to the Marshal are “automatically good cause within the 11 meaning of Rule 4[m].’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other 12 grounds by Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (citation 13 omitted). However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient 14 information to effect service of the summons and complaint, the Court’s sua sponte dismissal of the 15 unserved defendant is appropriate. Walker, 14 F.3d at 1421-22. Here, the U.S. Marshal attempted to serve Defendants Rocha, Jones and Mrs. K with the 16 17 information provided by Plaintiff. However, the Marshal was informed that service could not be 18 accepted for Defendants Rocha, Jones and Mrs. K because Plaintiff needed to be “more specific” and 19 could re-attempt service once he “finds out who they are.” (ECF No. 19, pp. 1-3). Plaintiff therefore 20 has failed to provide accurate and sufficient information to identify Defendants Rocha, Jones and Mrs. 21 K for service of process. If Plaintiff is unable to provide the Marshal with the necessary information 22 to identify Defendants Rocha, Jones and Mrs. K with greater specificity, then these defendants shall be 23 dismissed from this action, without prejudice. Under Rule 4(m), the court will provide Plaintiff with 24 the opportunity to show cause why Defendants Rocha, Jones and Mrs. K should not be dismissed from 25 the action at this time. 26 /// 27 /// 28 /// 2 1 III. Conclusion and Order 2 Based on the foregoing, it is HEREBY ORDERED that: 3 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 4 why Defendants Rocha, Jones and Mrs. K should not be dismissed from this action. Plaintiff may 5 comply with this order by providing accurate and sufficient information for the Marshal to identify 6 Defendants Rocha, Jones and Mrs. K for service of process; and 7 8 2. The failure to respond to this order will result in the dismissal of Defendants Rocha, Jones and Mrs. K from this action. 9 10 11 12 IT IS SO ORDERED. Dated: /s/ Barbara January 26, 2017 A. McAuliffe _ 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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