Benyamini v. Mendoza et al

Filing 62

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/9/11 ORDERING that the plaintiff must by 9/25/11 show good cause why defendants Brown and Paul should not be dismissed without prejudice. (Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT P. BENYAMINI,

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Plaintiff,

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vs.

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No. CIV S-09-2602 LKK GGH P

MENDOZA, et al.,

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Defendants.

ORDER
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Plaintiff, a state prisoner, is proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. By Order, filed on July 12, 2011, the undersigned observed following this

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court’s June 1, 2011, order directing the U.S. Marshal to serve the complaint on defendants,

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process directed to Brown, Paul and Hurtado, was returned unserved due to a lack of sufficient

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identifying information. Therefore, the court directed plaintiff to provide additional information

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to serve these defendants by promptly seeking such information through discovery, the California

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Public Records Act, Calif. Gov’t. Code § 6250, et seq., or other means available to plaintiff.

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Plaintiff was also informed that if access to the required information were denied or unreasonably

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delayed, plaintiff might seek judicial intervention.

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Plaintiff returned the requisite documents and, by Order, filed on July 27, 2011,
the court once again directed service upon these defendants. Thereafter, on August 5, 2011,
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process was once again returned unserved for defendants Brown and Paul because neither was a

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known California Medical Facility employee. The court will now require plaintiff to show cause

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why these defendants should not be dismissed.

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In relevant part, Fed. R. Civ. 4(m) states:

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[i]f a defendant is not served within 120 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.

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The original complaint in this action was filed on September 17, 2009, and while 120 days have

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not yet passed since the June 1, 2011, order, directing service of the amended complaint, plaintiff

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has generally been dilatory with respect to prosecuting this case1 and further orders regarding

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service of defendants Brown and Paul would, on the face of it, appear to be futile. Therefore,

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this court will recommend defendants Brown and Paul be dismissed without prejudice once the

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120-day period from the service order has passed, that is on or after September 29, 2011, under

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Fed. R. Civ. P. 4(m), if plaintiff is unable to show good cause, on or before September 25, 2011,

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why further efforts to serve them at this point would not be fruitless. Johnson v. Meltzer, 134

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F.3d 1393, 1396 (9th Cir. 1998) (Fed. Rule Civ. P. 4(m) provides that a defendant, unserved after

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120 days, shall be dismissed by the district court without prejudice).

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Accordingly, IT IS HEREBY ORDERED that plaintiff must, by September 25,

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2011, show good cause why defendants Brown and Paul, upon whom this court has twice

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unsuccessfully directed service of process, should not be dismissed without prejudice from this

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action, pursuant to Fed. R. Civ. P. 4(m), failing which, this court upon expiration of the 120-day

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See, e.g., the June 1, 2011, order (p. 1) noting plaintiff had belatedly filed the requisite
papers for service of process.
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period set forth under Rule 4(m), will recommend dismissal of these defendants.

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DATED: September 9, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:009

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beny2602.osc

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