Newton v. Curzen et al

Filing 23

ORDER TO SHOW CAUSE. Signed by Judge ARMSTRONG on 4/24/12. (lrc, COURT STAFF) (Filed on 4/25/2012)

1
2

UNITED STATES DISTRICT COURT
3

FOR THE NORTHERN DISTRICT OF CALIFORNIA
4

OAKLAND DIVISION
5
6
7 CARDELL NEWTON,

Plaintiff,

8
9

Case No: C 11-00309 SBA
ORDER TO SHOW CAUSE

vs.

10 OFFICER CURZEN and SAN QUENTIN

STATE PRISON,
11

Defendants.
12
13

On January 21, 2011, Plaintiff Cardell Newton ("Plaintiff") brought this action

14

against Defendants Officer Curzen and San Quentin State Prison, alleging four causes of

15

action styled as follows: (1) "Violation of Constitutional Right to Due Process"; (2)

16

"Malice"; (3) "Negligent"; and (4) "Liable." Compl., Dkt. 1. To date, however, Plaintiff

17

has not properly served either Defendant with a summons and complaint in accordance

18

with Rule 4 of the Federal Rules of Civil Procedure.

19

Under Rule 4(m), if a defendant is not served within 120 days after the complaint is

20

filed, the Court must dismiss the action without prejudice against that defendant or order

21

that service be made within a specified time. Fed.R.Civ.P. 4(m). The Court, however,

22

must extend the time for service for an appropriate period if the plaintiff shows good cause

23

for the failure to serve the defendant. Id. Good cause means, at a minimum, excusable

24

neglect. Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991). A plaintiff may be

25

required to show the following factors in order to bring the excuse to the level of good

26

cause: (1) the party to be served personally received actual notice of the lawsuit; (2) the

27

defendant would suffer no prejudice; and (3) plaintiff would be severely prejudiced if his

28

complaint were dismissed. In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001).

1

In light of Plaintiff's failure to serve Defendants within 120 days after the complaint

2

was filed, the Court orders Plaintiff to show cause why this case should not be dismissed

3

under Rule 4(m). Plaintiff shall file a response to this Order to Show Cause by no later

4

than May 4, 2012. Plaintiff is warned that the failure to file a timely response to this Order

5

will result in dismissal of this action without prejudice.

6
7

IT IS SO ORDERED.
Dated: 4/24/12

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-

1
2

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

3
4

NEWTON et al,

5
6
7
8

Plaintiff,
v.
CURZEN et al,
Defendant.
/

9
10

Case Number: CV11-00309 SBA

11

CERTIFICATE OF SERVICE

12
13
14
15
16
17

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on April 25, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

18
19

21

Cardell Newton
718 33rd Street
Oakland, CA 94609

22

Dated: April 25, 2012

20

23

Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

24
25
26
27
28
-3-