Pitts v. Davis et al

Filing 107

ORDER signed by Magistrate Judge Allison Claire on 6/27/2014 ORDERING plaintiff to SHOW CAUSE, within 28 days, why the unserved defendant Boughn should not be dismissed from this action; and failure to show good cause will result in a recommendation of dismissal of defendant Boughn without prejudice, pursuant to Fed.R.Civ.P. 4(m). (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDDIE L. PITTS,

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No. 2:12-cv-0823 TLN AC P
Plaintiff,

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v.

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C. DAVIS, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, on an action pursuant

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to 42 U.S.C. § 1983. Because a summons had been returned unexecuted as to defendant Boughn,

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the court, by order filed on January 3, 2014, directed defendants’ counsel to query the Department

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of Corrections and Rehabilitation to ascertain the whereabouts of this defendant within fourteen

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days. ECF No. 79. Counsel for defendants provided a timely response, on January 9, 2014,

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stating that defendant Boughn had never been employed by CDCR but during the relevant period

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had worked for a registry service that had a contract with CDCR to provide inmate medical

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services. ECF No. 80. Counsel also provided the last known business address for Boughn at the

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registry. Id.

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On January 17, 2014, this court directed the U.S. Marshal to serve defendant Boughn at

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the address provided. ECF No. 83 (Order filed on 1/21/4). On June 17, 2014, the summons was

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returned unexecuted. ECF No. 105. The summons indicates that after mailing was unsuccessful,
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personal service was attempted, equally without success, even after a further effort to gain an

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accurate address was made. Id.

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Plaintiff must show good cause, within twenty-eight days, why defendant R. Boughn

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should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m). Under Rule 4(m) of

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the Federal Rules of Civil Procedure, the court must dismiss without prejudice an action as to any

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defendant who has not been served within 120 days after a complaint has been filed “on motion

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or on its own after notice to the plaintiff” or specify a time for service to be effected. However,

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“if the plaintiff shows good cause for the failure, the court must extend the service for an

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appropriate period.” Id. Absent good cause for the failure of service to be effected upon

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defendant Boughn, the court will recommend this defendant’s dismissal without prejudice

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

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff show good cause, within twenty-eight days, why the unserved defendant

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Boughn should not be dismissed from this action; and
2. Failure to show good cause will result in a recommendation of dismissal of defendant

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Boughn without prejudice, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

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DATED: June 27, 2014

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