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)

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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-

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