(PC) Hesse v. County of Sacramento et al

Filing 18

ORDER to SHOW CAUSE signed by Magistrate Judge Kendall J. Newman on 08/01/22 ORDERING within 30 days from the date of this order, plaintiff shall show cause as set forth above. Failure to timely respond to this order will result in a recommendation that defendants Stephenye Burnett, Andrew Ho and Sonia Sanga be dismissed without prejudice. The parties are relieved of their obligation to file status reports.(Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL HESSE, 12 Plaintiff, 13 14 No. 2:21-cv-1931 WBS KJN P v. ORDER TO SHOW CAUSE COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 Plaintiff is a state prisoner, proceeding through counsel. On November 3, 2021, plaintiff 17 18 was ordered to complete service of process on defendants County of Sacramento, Phoebe Foo, 19 Lynn Billett, Stephenye Burnett, Andrew Ho and Sonia Sanga within sixty days. On December 20 13, 2021, an answer was filed on behalf of all defendants. However, on February 10, 2022, a 21 notice of errata was filed, and an Amended Answer by counsel for defendants Billett, County of 22 Sacramento and Foo was filed. No proof of service or executed waivers of service have been 23 filed for defendants Stephenye Burnett, Andrew Ho, and Sonia Sanga. Federal Rule of Civil Procedure 4(m) provides as follows: 24 25 26 27 28 Id. 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. 1 1 Plaintiff’s Rule 4(m) period did not commence until November 3, 2021, when the court 2 authorized service of process and provided summons. It is well past 90 days since plaintiff’s Rule 3 4(m) period commenced. Indeed, more than 90 days have expired since the answering defendants 4 filed their amended answer. Nothing has been filed by plaintiff to address the issue of service of 5 process on defendants Stephenye Burnett, Andrew Ho and Sonia Sanga. 6 Therefore, this order to show cause constitutes notice to plaintiff that the undersigned will 7 recommend dismissal of defendants Stephenye Burnett, Andrew Ho and Sonia Sanga from this 8 action without prejudice unless, no later than thirty days from the date of this order, plaintiff files 9 either (1) proof that service of the summons and complaint was timely effectuated on defendants 10 Stephenye Burnett, Andrew Ho and Sonia Sanga, or (2) a declaration under penalty of perjury 11 showing good cause for failure to timely effect service upon them, accompanied by a motion for 12 leave to service process outside of the 90-day period. 13 All parties are relieved of their obligation to file status reports. (ECF No. 3.) 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Within thirty days from the date of this order, plaintiff shall show cause as set forth 16 above. Failure to timely respond to this order will result in a recommendation that defendants 17 Stephenye Burnett, Andrew Ho and Sonia Sanga be dismissed without prejudice. Fed. R. Civ. P. 18 4(m). 19 20 2. The parties are relieved of their obligation to file status reports. (ECF No. 3.) Dated: August 1, 2022 21 22 23 24 /hess1931.4m 25 26 27 28 2

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