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Solvey v. Tilton

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 20, 2009

STANLEY H. SOLVEY, PLAINTIFF,
v.
JAMES TILTON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WITHIN THIRTY DAYS WHY DEFENDANTS VOSS AND BRADSHAW SHOULD NOT BE DISMISSED FOR FAILURE TO PROVIDE INFORMATION SUFFICIENT TO EFFECT SERVICE (Docs. 52 and 53)

Plaintiff Stanley H. Solvey ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action. This action is proceeding on Plaintiff's amended complaint, filed on June 20, 2007, against eleven defendants. (Docs. 15, 16.) Nine defendants waived service and made an appearance in this action, but the United States Marshal was unable to identify and locate Defendants Voss and Bradshaw. (Docs. 28, 40.) On November 17, 2008, the Court issued an order directing the United States Marshal to again attempt to locate and serve Defendants Voss and Bradshaw through contact with the Legal Affairs Divison of the California Department of Corrections and Rehabilitation. (Doc. 45.) However, the Marshal's second attempt to locate and serve Defendants Voss and Bradshaw was unsuccessful, and on January 30, 2009, the USM-285 forms were returned to the Court with the certification that the Marshal was unable to locate Defendants Voss and Bradshaw. (Doc. 52, 53.)

Pursuant to Rule 4(m),

[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m).

In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). "'[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint and ... should not be penalized by having his action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties.'" Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). "So long as the prisoner has furnished the information necessary to identify the defendant, the marshal's failure to effect service is 'automatically good cause . . . .'" Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint, the Court's sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22.

In this instance, per the Legal Affairs Division, there is no information or current address available for Voss, and no record of an LVN Bradshaw. (Docs. 52, 53.) The Court and the Marshal have exhausted the avenues available for identifying and locating these defendants on the behalf of Plaintiff. If Plaintiff is unable to provide the Marshal with current addresses at which Defendants Voss and Bradshaw can be located, they shall be dismissed from the action, without prejudice. Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause why Defendants Voss and Bradshaw should not be dismissed from the action at this time.

Accordingly, based on the foregoing, it is HEREBY ORDERED that:

1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause why Defendants Voss and Bradshaw should not be dismissed from this action; and

2. The failure to respond to this order or the failure to show cause will result in the dismissal of Defendants Voss and Bradshaw from this action.

IT IS SO ORDERED.

20090220

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