Torres v. Gipson et al
Filing
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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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