Knapp v. Hickman et al

Filing 189

ORDER to SHOW CAUSE signed by Magistrate Judge Craig M. Kellison on 08/18/09 ordering plaintiff shall show cause within 20 days of the date of this order why Gunning, Marshall, Murray and Warvarovski should not be dismissed as defendants to this action pursuant to FRCP 4(m) for failure to effect timely service. (Plummer, M)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Previously, the court's captions listed Roderick Hickman as the lead defendant. This individual, however, has been terminated as a defendant to the action. N. Ali is the first remaining defendant listed on the court's docket and, therefore, is now the lead defendant. 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ERIC CHARLES RODNEY KNAPP, Plaintiff, vs. N. ALI,1 et al., Defendants. / No. CIV S-05-2520-FCD-CMK-P ORDER TO SHOW CAUSE Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. 1983. A review of the court's docket reflects that the following defendants remain unserved. Gunning, Marshall, Murray, and Warvarovski. In the court's February 21, 2008, findings and recommendations, the court stated as follows regarding these defendants: Finally, the court addresses the four unserved defendants Warvarovski, Gunning, Marshall, and Murray. As to Gunning, Marshall, and Murray, on November 29, 2007, the court directed the United States Marshal to obtain information directly from prison officials and, if possible, to effect service of process. The United States Marshal was directed to notify the court within 20 days of the date of that order if 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 information sufficient to serve these three defendants was not available. On February 15, 2008, court staff communicated with the United States Marshal's office and learned that plaintiff had not provided sufficient information to locate Gunning, Marshall, or Murray. Specifically, as to Gunning, this individual retired and left no forwarding address. As to Marshall and Murray, there are several such individuals working for the California Department of Corrections and Rehabilitation and plaintiff did not provide enough identifying information. As to defendant Warvarovski, service was returned unexecuted on February 2, 2007, because he is on military service overseas and cannot be located. It is possible that plaintiff may be able to obtain additional information regarding these four defendants by way of the discovery process. Therefore, the court does not recommend dismissal of them at this time. If, however, after a reasonable period of time, plaintiff is unable to provide additional information, the court will recommend dismissal pursuant to Federal Rule of Civil Procedure 4(m). In the meantime, the court will monitor for service of these four individuals. Nearly 18 months have passed and plaintiff has not provided the court with any additional information which would allow the United States Marshall to serve process on these four individuals. Plaintiff shall show cause within 20 days of the date of this order why Gunning, Marshall, Murray, and Warvarovski should not be dismissed as defendants to this action pursuant to Federal Rule of Civil Procedure 4(m) for failure to effect timely service. Plaintiff is cautioned that failure to respond to this order may result in the dismissal of these four defendants for the reasons outlined above as well as failure to prosecute and comply with court orders. See Local Rule 11-110. IT IS SO ORDERED. DATED: August 18, 2009 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 2

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