Arreola v. U.S. Marshals et al

Filing 9

ORDER DISMISSING ACTION PURSUANT TO FED. R. CIV. P. 4(m): Accordingly, the Rule 4(m) hearing currently set for 1/10/2011 is Vacated and the Court hereby Dismisses without prejudice the action for failure to prosecute under Federal Rule of Civil Procedure 4(m). The Court clerk is instructed to terminate the case. Signed by Judge Michael M. Anello on 12/15/2010.(All non-registered users served via U.S. Mail Service)(leh)

-BLM Arreola v. U.S. Marshals et al

Doc. 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ERIK ARREOLA Inmate Booking# 9796966, vs. Plaintiff, CASE NO. 10cv1013 MMA (BLM) ORDER DISMISSING ACTION PURSUANT TO FED. R. CIV. P. 4(m)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

U.S. MARSHALS; VAZQUEZ; ROBERTO SANCHEZ; FRANKIE GUERRERO; H. JESUS; DOES 1-50, Defendants. On May 5, 2010, Plaintiff Erik Arreola, proceeding pro se, filed a Complaint against Defendants U.S. Marshals, Vazquez, Roberto Sanchec, Frankie Guerrero, and H. Jesus ("Defendants") alleging excessive force claims. [Doc. No. 1.] At the time Plaintiff filed his Complaint, Plaintiff was incarcerated at the George Bailey Detention Facility located in San Diego, California. Plaintiff failed to pay the filing fee and did not submit a motion to proceed in forma pauperis ("IFP"). The Court sua sponte dismissed the action without prejudice, but granted forty-five days to prepay the fee or file a motion to proceed IFP. Plaintiff filed the motion to proceed IFP and the Court granted his motion. On June 17, 2010, the Court directed the U.S. Marshal to effect service of the Summons and Complaint, and issued summons as to all Defendants. The Court clerk sent Plaintiff an IFP Package containing the documents and information necessary for Plaintiff to complete U.S. Marshal Service. On June 24, 2010, the mail service returned the IFP Package as undeliverable because Plaintiff was released from custody and no new forwarding address was provided. [Doc. No. 6.] Plaintiff did not -110cv1013

Dockets.Justia.com

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provide the Court with a current mailing address within sixty days of the mail being returned as undeliverable, as is required by Civil Local Rule 83.11.1 On November 3, 2010, the Court issued a Notice of Hearing for Dismissal for Want of Prosecution under Federal Rule of Civil Procedure 4(m). Rule 4(m) states: If a defendant is not served within 120 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. This subdivision (m) does not apply to service in a foreign country under Rule f(f) or 4(j)(1). Fed. R. Civ. P 4(m). Plaintiff did not serve Defendants by September 2, 2010, which was120 days after he filed the Complaint. The Court attempted to provide Plaintiff notice that he risks dismissal of the action by failing to comply with the time limitation provisions of Rule 4(m). The Court clerk sent Plaintiff a notice of the Rule 4(m) hearing via mail to the last address Plaintiff provided the Court, George S. Bailey Detention Center, 446 Alta Road, Ste. 5300, San Diego, CA 92158. The mail service again returned the document as undeliverable, and no forwarding address was provided. [Doc. No. 8.] The Court is unable to apprise Plaintiff of the status of his case because he has not kept the Court informed of his current address. Accordingly, the Rule 4(m) hearing currently set for January 10, 2011 is VACATED and the Court hereby DISMISSES without prejudice the action for failure to prosecute under Federal Rule of Civil Procedure 4(m). The Court clerk is instructed to terminate the case. IT IS SO ORDERED.

DATED: December 15, 2010 Hon. Michael M. Anello United States District Judge

Civil Local Rule 83.11 provides that a party proceeding pro se must keep the Court apprised of its current address. The Local Rule further instructs that if mail directed to a pro se plaintiff's last designated address is returned, and if the plaintiff fails to notify the court of a new address within sixty (60) days thereafter, the Court may dismiss the action without prejudice for failure to prosecute. Civ.L.R. 83.11. -210cv1013

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