Brookins v. Hernandez et al

Filing 21

ORDER to SHOW CAUSE, signed by Magistrate Judge Stanley A. Boone on 11/1/18. Show Cause Response due 30-Day Deadline(Martin-Gill, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

BARRY LEE BROOKINS,

12

Plaintiff,

13
14

v.
M. HERNANDEZ, et al.,

15

Defendants.

16

Case No. 1:17-cv-01675-AWI-SAB (PC)
ORDER TO SHOW CAUSE WHY DEFENDANT
SALVADO SHOULD NOT BE DISMISSED
FROM THE ACTION PURSUANT TO RULE 4
OF THE FEDERAL RULES OF CIVIL
PROCEDURE
[ECF No. 20]

Plaintiff Barry Lee Brookins is appearing pro se and in forma pauperis in this civil rights action

17
18

)
)
)
)
)
)
)
)
)
)

pursuant to 42 U.S.C. § 1983.

19

This action is proceeding on Plaintiff’s claim for cruel and unusual punishment against

20

Defendants officer M. Hernandez, lieutenant E. Williams, captain Williams, officer L. Sanchez, officer

21

Galvenson, officer Schleesman, sergeant Crane, sergeant Salvado, and S. Marsh.
The United States Marshal was not able to locate or identify Defendant Salvado, and service

22
23

was returned un-executed on October 29, 2018. The following information was provided by the

24

Marshal in the remarks of the unexecuted summons: “SATF is unable to identify an employee by this

25

name or any name close to it.” (ECF No. 20.) Accordingly, more information is needed to identify

26

and serve this Defendant.

27

///

28

///
1

1

Rule 4(m) of the Federal Rules of Civil Procedure provides:

2

If a defendant is not served within 90 days after the complaint is filed, the court - on motion
or on its own after notice to the plaintiff - 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.

3
4
5
6

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

7

shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). “[A]n

8

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

9

service of the summons and complaint and [he] should not be penalized by having his action dismissed

10

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

11

Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations and citation omitted),

12

abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has

13

furnished the information necessary to identify the defendant, the marshal’s failure to effect service is

14

automatically good cause. . . .” Walker, 14 F.3d at 1422 (internal quotations and citation omitted).

15

However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information

16

to effect service of the summons and complaint, the Court’s sua sponte dismissal of the unserved

17

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

18

At this juncture, the United States Marshal’s office has exhausted the avenues available to it in

19

attempting to locate and serve Defendant Salvado. Plaintiff shall be provided with an opportunity to

20

show cause why this Defendant should not be dismissed. Fed. R. Civ. P. 4(m). Plaintiff may comply

21

with this order by providing further information sufficient to identify this Defendant for service of

22

process. If Plaintiff either fails to respond to this order or responds but fails to show cause, this

23

Defendant shall be dismissed from this action, without prejudice.

24

///

25

///

26

///

27

///

28

///
2

1

Accordingly, based on the foregoing, it is HEREBY ORDERED that:

2

1.

3

why Defendant Salvado should not be dismissed from this action; and
2.

4
5

Within thirty (30) days from the date of service of this order, Plaintiff shall show cause

The failure to respond to this order or the failure to show cause will result in the dismissal

of Defendant Salvado from this action.

6
7

IT IS SO ORDERED.

8

Dated:

9

November 1, 2018
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3