Rogers v. Scribner
Filing
32
ORDER to SHOW CAUSE, signed by Magistrate Judge Sheila K. Oberto on 05/15/2010. Show Cause Response due by 6/21/2010. (Martin, S)
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1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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UNITED STATES DISTRICT COURT
ROBERT ROGERS, Plaintiff, v. WARDEN A.K. SCRIBNER, et al., Defendants. /
CASE NO. 1:05-cv-00569-AWI-SKO PC ORDER TO SHOW CAUSE WHY DEFENDANT M O N T G O M E R Y S H O U L D NOT BE DISMISSED FROM THIS ACTION SHOW CAUSE DUE WITHIN 30 DAYS
Plaintiff Robert Rogers ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On September 1, 2009, the Court issued an order directing the U.S. Marshal to serve Defendants A.K. Scribner, Walker, Miller, Montgomery, Alvarez, Stockman, Ortiz, Bravo, Yamamoto, Vella, and Villareal with a summons and a copy of Plaintiff's complaint. (Doc. #16.) On November 2, 2009, a summons was returned unexecuted as to Defendant Montgomery.1 (Doc. #19.) The U.S. Marshal indicated that Defendant Montgomery was no longer employed at the address provided by Plaintiff. 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. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).
T h e remaining Defendants have made appearances in this action.
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Defendant Montgomery has not been served within the 120 day deadline set forth in Rule 4(m). Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915 and is entitled to have process served by a U.S. Marshal. 28 U.S.C. § 1915(d), Federal Rule of Civil Procedure 4(c)(3). However, the inability to serve Defendant Montgomery appears to stem from Plaintiff's failure to provide sufficient information to locate Defendant and effect service. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (dismissal under Rule 4 appropriate where Plaintiff fails to provide U.S. Marshal with sufficient information to serve defendant) abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). Plaintiff is responsible for providing sufficient information to the U.S. Marshal to effect service of process. Accordingly, Plaintiff is HEREBY ORDERED TO SHOW CAUSE within thirty (30) days why Defendant Montgomery should not be dismissed from this action pursuant to Federal Rule of Civil Procedure 4(m).2
IT IS SO ORDERED. Dated: ie14hj May 15, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE
S h o u ld Plaintiff have more current information on the whereabouts of Defendant Montgomery, he should p r o v id e it to the Court at this time.
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