Torres v. Gipson et al

Filing 24

ORDER REQUIRING Plaintiff to SHOW CAUSE Why Certain Defendant should not be Dismissed; Show Cause Response due within Thirty (30) Days signed by Magistrate Judge Michael J. Seng on 10/7/2017. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN MATIAS TORRES, 12 Plaintiff, 13 14 v. CONNIE GIPSON, et al., 15 Defendants. CASE NO. 1:16-cv-1525-LJO-MJS (PC) ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY CERTAIN DEFENDANT SHOULD NOT BE DISMISSED THIRTY (30) DAY DEADLINE 16 17 18 Plaintiff is a state prisoner proceeding pro se in this civil rights action brought 19 pursuant to 42 U.S.C. § 1983. (ECF No. 16.) The Court screened Plaintiff’s First 20 Amended Complaint and found that it stated a cognizable claim against Defendants D. 21 Babineaux-Prince, R. Briggs, D. Case, R. Chavez, L. Clausell, T. Galaviz, Connie 22 Gipson, C. Henderson, K. Matta, A. Mayo, J. C. Smith, C.R. Villarrial, D. Weaver, and L. 23 Williams. (ECF No. 18.) 24 Service on Defendant Williams was returned unexecuted. (ECF No. 21.) In the 25 remarks section of the USM-285, the Marshal wrote: “unable to locate subject L. 26 Williams.” (Id.) 27 The Court and the United States Marshal (“USM”) have a statutory duty to serve 28 process on Plaintiff’s behalf. The response given by the Marshals Service was 1 insufficient to allow the Court to discharge this duty on the ground that the defendant 2 cannot be located. 28 U.S.C. 1915(d); Fed. R. Civ. P. 4(c)(3). Accordingly, the Court 3 ordered USM to re-attempt service on Defendant Williams. (ECF No. 22.) 4 On October 4, 2017, service on Defendant Williams was, again, returned 5 unexecuted. (ECF No. 23.) In the remarks section of the USM-285, the Marshal wrote: 6 “The office of [California Department of Corrections and Rehabilitation (CDCR)] was 7 contacted on 8-28-17. They made multiple attempts to locate this employee but have no 8 record of any employee by that name. They will not accept service and are unable to 9 provide any additional information. 10-4-2017 -- Additional attempts were made by all 10 departments at “1515” address - unable to locate.” (Id.) 11 At this time, the Marshals Service has exhausted the avenues available to it to 12 locate and serve Defendant Williams. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 13 1994). Accordingly, Plaintiff shall show cause why Defendant Williams should not be 14 dismissed. Fed. R. Civ. P. 4(m). If Plaintiff either fails to respond to this order or 15 responds but fails to show cause, the Court will recommend that Defendant Williams be 16 dismissed from the action 17 Based on the foregoing, it is HEREBY ORDERED that: 18 1. Within thirty (30) days from the date of service of this order, Plaintiff shall 19 show cause why Defendant Williams should not be dismissed from this 20 action; and 21 2. If Plaintiff fails to respond to this order or fails to show cause, the Court will 22 recommend that Defendant Williams be dismissed from this action. 23 24 25 IT IS SO ORDERED. Dated: October 7, 2017 /s/ 26 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 27 28 2

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