Robinson v. Davey et al

Filing 66

ORDER for Plaintiff to SHOW CAUSE Why Defendant Gonzalez-Thompson Should Not be Dismissed for Plaintiff's Failure to Effect Service, signed by Magistrate Judge Gary S. Austin on 6/16/2020. Show Cause Response due within thirty (30) days. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY L. ROBINSON,

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Plaintiff,

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vs.
DAVE DAVEY, et al.,

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Defendants.

1:17-cv-01524-DAD-GSA-PC
ORDER FOR PLAINTIFF TO SHOW
CAUSE WHY DEFENDANT GONZALEZTHOMPSON SHOULD NOT BE
DISMISSED FOR PLAINTIFF’S FAILURE
TO EFFECT SERVICE
(ECF No. 65.)
THIRTY DAY DEADLINE

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I.

RELEVANT PROCEDURAL HISTORY

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Anthony L. Robinson (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on Plaintiff’s

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First Amended Complaint filed on July 2, 2018, against defendant C/O H. German for use of

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excessive force, and against defendants Sgt. A. Peterson and S. Gonzales-Thompson (LVN) for

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providing inadequate medical care in violation of the Eighth Amendment. (ECF No. 24.)

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On August 22, 2019, the court issued an order directing the United States Marshal

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(“Marshal”) to serve process upon defendants German, Peterson, and Gonzales-Thompson.

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(ECF No. 57.) On June 15, 2020, the Marshal filed a return of service unexecuted as to defendant

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Gonzales-Thompson indicating that the Marshal was unable to locate defendant Gonzales-

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Thompson for service of process. (ECF No. 65.)
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II.

SERVICE BY UNITED STATES MARSHAL

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Pursuant to Rule 4(m),

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If a defendant is not served within 120 days after the complaint is filed, the court
B on motion or on its own after notice to the plaintiff B 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.

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Fed. R. Civ. P. 4(m).

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In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of

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the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “[A]n incarcerated

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pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of

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the summons and complaint and . . . should not be penalized by having his action dismissed for

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failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties.”

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Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d

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270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).

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“So long as the prisoner has furnished the information necessary to identify the defendant, the

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marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker, 14 F.3d at 1422

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(quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, where a pro se

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plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of

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the summons and complaint, the Court’s sua sponte dismissal of the unserved defendants is

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appropriate. Walker, 14 F.3d at 1421-22.

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Background

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The return of service filed by the Marshal on June 15, 2020, indicates that on August 27,

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2019, the Corcoran State Prison Litigation Coordinator reviewed all documents and contacted

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the Medical Contractor, but there is no record of an employee named S. Gonzalez-Thompson.

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(ECF No. 65.) The Marshal certified that he or she was unable to locate defendant S. Gonzalez-

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Thompson. (Id.)

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Pursuant to Rule 4(m), the Court will provide Plaintiff with an opportunity to show cause

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why defendant S. Gonzalez-Thompson should not be dismissed from this action for failure to

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serve process. Plaintiff has not as yet provided sufficient information to identify and locate
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defendant S. Gonzalez-Thompson for service of process. If Plaintiff is unable to provide the

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Marshal with additional information, defendant S. Gonzalez-Thompson shall be dismissed from

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this action.

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III.

CONCLUSION

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Accordingly, 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 show

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cause why defendant S. Gonzalez-Thompson should not be dismissed from this

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action pursuant to Rule 4(m); and

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2.

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Plaintiff’s failure to respond to this order may result in the dismissal of defendant
S. Gonzalez-Thompson or dismissal of this action in its entirety.

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IT IS SO ORDERED.
Dated:

June 16, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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