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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUAN MATIAS TORRES,

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Plaintiff,

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v.
CONNIE GIPSON, et al.,

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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

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Plaintiff is a state prisoner proceeding pro se in this civil rights action brought

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pursuant to 42 U.S.C. § 1983. (ECF No. 16.) The Court screened Plaintiff’s First

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Amended Complaint and found that it stated a cognizable claim against Defendants D.

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Babineaux-Prince, R. Briggs, D. Case, R. Chavez, L. Clausell, T. Galaviz, Connie

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Gipson, C. Henderson, K. Matta, A. Mayo, J. C. Smith, C.R. Villarrial, D. Weaver, and L.

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Williams. (ECF No. 18.)

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Service on Defendant Williams was returned unexecuted. (ECF No. 21.) In the

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remarks section of the USM-285, the Marshal wrote: “unable to locate subject L.

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Williams.” (Id.)

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The Court and the United States Marshal (“USM”) have a statutory duty to serve

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process on Plaintiff’s behalf. The response given by the Marshals Service was

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insufficient to allow the Court to discharge this duty on the ground that the defendant

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cannot be located. 28 U.S.C. 1915(d); Fed. R. Civ. P. 4(c)(3). Accordingly, the Court

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ordered USM to re-attempt service on Defendant Williams. (ECF No. 22.)

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On October 4, 2017, service on Defendant Williams was, again, returned

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unexecuted. (ECF No. 23.) In the remarks section of the USM-285, the Marshal wrote:

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“The office of [California Department of Corrections and Rehabilitation (CDCR)] was

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contacted on 8-28-17. They made multiple attempts to locate this employee but have no

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record of any employee by that name. They will not accept service and are unable to

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provide any additional information. 10-4-2017 -- Additional attempts were made by all

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departments at “1515” address - unable to locate.” (Id.)

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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 Williams. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir.

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1994). Accordingly, Plaintiff shall show cause why Defendant Williams should not be

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dismissed. Fed. R. Civ. P. 4(m). If Plaintiff either fails to respond to this order or

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responds but fails to show cause, the Court will recommend that Defendant Williams be

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dismissed from the action

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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

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show cause why Defendant Williams 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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recommend that Defendant Williams be dismissed from this action.

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IT IS SO ORDERED.
Dated:

October 7, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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