Jobe v. Sacramento County Jail et al

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 5/18/2017 ORDERING Plaintiff to serve Defendants within 21 days. Failing service, Plaintiff to SHOW CAUSE why this action should not be dismissed without prejudice for failure to serve. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFREY CLYDE JOBE,

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No. 2:16-cv-1196 AC

Plaintiff,
v.

ORDER

SACRAMENTO COUNTY JAIL, et al.,
Defendants.

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Plaintiff, through his counsel, brought this 42 U.S.C. § 1983 action on June 1, 2016. ECF

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No. 1. He paid the full filing fee on that date. Id. In his complaint he alleges that, while he was

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incarcerated at the Sacramento County Jail, defendants: (1) violated his Eighth Amendment rights

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by failing to provide him with adequate medical care; (2) violated his Fourteenth Amendment due

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process rights; (3) failing to furnish or summon medical care pursuant to Cal. Govt. Code § 845.6;

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(4) were negligent and committed medical malpractice under California state law. Id. at 10-14.

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The complaint also indicates that plaintiff was no longer a prisoner at the time the complaint was

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filed in this court. See id. at 4 (“Mr. Jobe was released . . . [h]e is in grave fear of being arrested

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or coming into contact with police and the jail.”).

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Plaintiff was not a prisoner at the time he filed this complaint and thus is not a “prisoner”

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for the purposes of the Prison Litigation Reform Act. See Talamantes v. Leyva, 575 F.3d 1021,

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1023 (9th Cir. 2009). As mentioned above, he is represented by counsel and not proceeding in
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forma pauperis. Accordingly, the court is not required to screen his complaint pursuant to either

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the provisions of 28 U.S.C. § 1915 or 42 U.S.C. § 1997e. It is unclear, then, why this action has

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not progressed beyond the filing of a complaint nearly one year ago. Plaintiff is not entitled to

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rely on the United States Marshal to serve summons and the complaint. See Walker v. Sumner,

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14 F.3d 1415, 1422 (9th Cir. 1994) (“In cases involving plaintiffs proceeding in forma pauperis,

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the United States Marshal, upon order of the court, is authorized to serve the summons and the

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complaint.”) (emphasis added).

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Federal Rule of Civil Procedure 4(m) provides, in relevant part: “If a defendant is not
served within 90 days after the complaint is filed, the court -- on motion or on its own after notice

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to the plaintiff -- must dismiss the action without prejudice against that defendant or order that

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service be made within a specified time. But if the plaintiff shows good cause for the failure, the

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court must extend the time for service for an appropriate period.” The complaint in this action

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was filed well in excess of ninety days ago. Accordingly, within twenty-one days of this order’s

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entry, plaintiff should serve defendants. Failing that, he should show cause why this action

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should not be dismissed without prejudice for failure to serve.

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SO ORDERED.

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DATED: May 18, 2017

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