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