United States District Court, E.D. California
CHRISTY V. MOORE, Plaintiff,
CITY OF SHAFTER, et al., Defendants.
FINDINGS AND RECOMMENDATION TO DISMISS DEFENDANT
ARDON PURSUANT TO Fed.R.Civ.P. 4(M) AND TO CLOSE THE ACTION
(DOCS. 24, 25, 28) TWENTY-ONE (21) DAY DEADLINE
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Christy V. Moore, is a state prisoner, proceeds pro
se and in forma pauperis in this action
pursuant to 42 U.S.C. § 1983. This action is proceeding
on Plaintiff's claim for violation of her rights under
the Eight Amendment against Defendant Ardon. (See
Docs. 11, 16, 17.) The U.S. Marshal was not able to locate
Defendant Ardon and service was returned unexecuted on
November 13, 2017. (Doc. 24.) Thus, On November 16, 2017,
Plaintiff was provided opportunity to submit additional
information on Defendant Ardon's whereabouts to achieve
service. (Doc. 25.) Plaintiff failed to submit any
information on Defendant Ardon's whereabouts during the
order issued on January 11, 2018, for Plaintiff to show cause
(“OSC”) why Defendant Ardon should not be
dismissed under Rule 4(m) of the Federal Rules of Civil
Procedure,  which would result in closing this action.
(Doc. 28.) Plaintiff requested and received a sixty (60) day
extension of time to respond to the OSC. (Docs. 29, 30.)
Despite lapse of nearly ninety (90) days, Plaintiff has
neither responded to the OSC, nor provided additional
information on Defendant Ardon's whereabouts to allow for
service by U.S. Marshal.
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.
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.” Walker v.
Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal
quotations and citation omitted), 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 (internal
quotations and citation omitted). 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.
juncture, the Marshal's Office has exhausted the avenues
available to it in attempting to locate and serve Defendant
Ardon. Walker, 14 F.3d at 1421-22. On
November 16, 2017, Plaintiff was ordered to provide
additional information for service on Defendant Ardon. (Doc.
25.) Although nearly five months have passed since that order
issued, Plaintiff has failed to provide any additional
information to attempt service on Defendant Ardon.
action has been pending for over two years. Plaintiff's
time for identifying and serving Defendant Ardon has been
extended well beyond the 120 days from the filing of the
Complaint as allowed in Rule 4(m). While good cause initially
existed to allow an extension beyond the 120 day service
deadline of Rule 4(m), there is no good cause to further
extend the time for service of Defendant Ardon. It is
Plaintiff's obligation to provide information necessary
to identify and locate a given defendant-which Plaintiff has
not done and is apparently unable to do. Good cause does not
exist to further extend the time for service of the operative
complaint in this action on Defendant Ardon. As such, Ardon
is the only defendant and this action should be closed.
CONCLUSION & RECOMMENDATION
has failed and is unable to provide sufficient information to
identify and locate Defendant Ardon for service of a summons
in this action. Good cause does not ...