Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
Oscar W. Jones v. Stephen Mayberg
March 15, 2013
OSCAR W. JONES,
STEPHEN MAYBERG, ET AL.,
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY DEFENDANT BRYANTSHOULD NOT BE DISMISSED PURSUANT TO RULE 4(M) (Doc. 27) THIRTY-DAY DEADLINE
Plaintiff Oscar W. Jones, a former civil detainee proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 25, 2010. This action is proceeding against Defendants Bryant and Does 2 and 3 for violating the Due Process Clause relating to the failure to transport Plaintiff for medical treatment. However, the United States Marshal cannot serve unknown parties and service on Defendant Bryant has been unsuccessful.
Rule 4(m) provides that [i]f 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.
In cases involving a plaintiff proceeding in forma pauperis, the
Marshal, upon order of the Court, shall serve the summons and the
complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). "'[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.'"*fn1
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.
Defendant Kathy Bryant is no longer employed at Coalinga State Hospital (CSH), and therefore, CSH will not accept service on her behalf. (Doc. 27.) Because the address provided by Plaintiff for Defendant Bryant is no longer valid, the Court finds that the avenue available in attempting to locate and serve Defendant has been exhausted. Walker, 14 F.3d at 1421-22. It appears that dismissal of Defendant Bryant is appropriate at this time, but Plaintiff shall be provided with an opportunity to show cause why dismissal should not occur. Fed. R. Civ. P. 4(m).
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 Defendant Bryant 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 Defendant Bryant from this action, without prejudice.
Buy This Entire Record For