UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 22, 2010
LANCE WARNER, PLAINTIFF,
M. MCMAHON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: James L. Robart United States District Judge
ORDER DISMISSING CLAIMS AGAINST DEFENDANT I. LARSON WITHOUT PREJUDICE
Before the court is the issue of Plaintiff Lance Warner's failure to effect service of the summons and first amended complaint on Defendant I. Larson. Having reviewed the record and for the reasons that follow, the court DISMISSES Plaintiff's claims against I. Larson without prejudice.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. By order filed on October 6, 2009, the court directed Plaintiff to complete four USM-285 forms for purposes of serving each of the four Defendants. (Dkt. # 21.) By order filed on November 30, 2009, the court directed the United States Marshal to serve Defendants in accordance with the USM-285 forms submitted by Plaintiff. (Dkt. # 24.) On January 27, 2010, the United States Marshal filed notice that I. Larson could not be located based on the information provided by Plaintiff. (Dkt. # 26.) On March 8, 2010, the court entered a second order directing Plaintiff to submit within 60 days additional information necessary for the United States Marshal to identify and serve Defendants.*fn1 (Dkt. # 27.) On April 6, 2010, Defendants M. McMahon, B. Landingham, and M. Day waived service and answered the first amended complaint. (Dkt. ## 30-31.) By contrast, I. Larson did not waive service, did not answer the complaint, and did not otherwise appear. Plaintiff did not submit additional information within the 60-day period specified in the court's March 8, 2010 order.
By order filed on May 25, 2010, the court ordered Plaintiff to show cause within 30 days why the court should not dismiss I. Larson from this action without prejudice. (Dkt. # 33.) In that order, the court stated that "[i]f Plaintiff does not respond to this order or otherwise fails to show good cause, the court shall dismiss I. Larson from this action without prejudice." (Id. at 2.) Later on the same date, Plaintiff requested an extension of time to comply with the court's March 8, 2010 order. (Dkt. # 34.) Plaintiff sought an extension of the deadline to June 21, 2010. (Id.) By order filed on June 17, 2010, the court granted Plaintiff's motion for an extension of time and extended the deadline to respond to the court's March 8, 2010 and May 25, 2010 orders to June 25, 2010. (Dkt. # 35.) Again, the court emphasized: "If Plaintiff does not meet this new deadline, or otherwise show good cause for his failure to do so, the court shall dismiss I. Larson from this action without prejudice." (Id. at 2.)
Plaintiff did not respond to the court's orders or otherwise file any motion or submission with the court by the June 25, 2010 deadline. In recognition of the mailing and litigation difficulties associated with Plaintiff's imprisonment, the court delayed taking action until the present date, thereby extending the deadline in an abundance of caution. Plaintiff has still not filed any response, motion, or other submission with the court.
Federal Rule of Civil Procedure 4(m) provides:
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.
Fed. R. Civ. P. 4(m). An incarcerated plaintiff proceeding in forma pauperis is entitled, upon order of the court, to rely on the United States Marshal to effect service of the summons and complaint. 28 U.S.C. § 1915(d); Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Further, a plaintiff "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, 14 F.3d at 1422 (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)). "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'" for extending the time for service. Id. (citing Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)).
On this record, the court concludes that Plaintiff's claims against I. Larson must be dismissed without prejudice. On November 30, 2009, the court ordered the United States Marshal to serve Plaintiff's first amended complaint based on the information provided by Plaintiff. The United States Marshal attempted to serve I. Larson, but ultimately could not do so. The court thus directed Plaintiff to provide within 60 days additional information necessary for the purpose of identifying and serving I. Larson. Plaintiff did not meet this deadline. The court extended deadline and Plaintiff did not meet the extended deadline. During this time, the 120-day period of Rule 4(m) expired and the court repeatedly warned Plaintiff of the consequence of not responding to the court's orders. As of the present date, Plaintiff has not served I. Larson, has not provided the additional information necessary for the United States Marshal to identify and serve I. Larson, and has not requested additional time to effect service or otherwise shown good cause for his delay. In light of the foregoing, the court DISMISSES Plaintiff's claims against I. Larson without prejudice. Fed. R. Civ. P. 4(m); Walker, 14 F.3d at 1422. This order does not affect Plaintiff's claims against the other Defendants.