Calloway v. Warden Corcoran State Prison et al
Filing
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ORDER DISMISSING Defendants Kappa and Spears for Failure to Effect Service of Process, signed by District Judge Lawrence J. O'Neill on 11/10/2011. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAMISI JERMAINE CALLOWAY,
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CASE NO. 1:05-cv-01284-LJO-BAM PC
Plaintiff,
ORDER DISMISSING DEFENDANTS KAPPA
AND SPEARS FOR FAILURE TO EFFECT
SERVICE OF PROCESS
v.
MONTGOMERY, et al.,
Defendants.
/
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Plaintiff Jamisi Jermaine Calloway (“Plaintiff”) is a state prisoner proceeding pro se in this
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civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s second
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amended complaint, filed December 13, 2007, against Defendants Montgomery, Babb, Spears, Bhatt,
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Kappa and Doe for violation of the Eighth Amendment.
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On October 21, 2011, an order issued requiring Plaintiff to show cause why Defendants
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Kappa and Spears should not be dismissed from this action due to Plaintiff’s failure to provide
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information sufficient to identify the person to be served. Plaintiff was specifically advised that
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pursuant to Federal Rule of Civil Procedure 4(m), the court may, on its own motion, after notice to
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Plaintiff, dismiss a defendant who has not been served within 120 days after the complaint has been
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filed. Plaintiff was also advised that, so long as he provides the United States Marshal with the
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information necessary to identify the defendant, good cause exists to extend the time for service set
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out in Rule 4(m). Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v.
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Blandford, 912 F.2d 270, 275 (9th Cir. 1990)) abrogated in part on other grounds by Sandin v.
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Conner, 515 U.S. 472 (1995). On June 8, 2011, Plaintiff filed a response stating that Defendants
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Kappa and Spears should not be dismissed because he has provided sufficient information to identify
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them. (ECF No. 79.)
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In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the
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Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro
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se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the
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summons and complaint and . . . should not be penalized by having his action dismissed for failure
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to effect service where the U.S. Marshal or the court clerk has failed to perform his duties . . . .”
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Walker, 14 F.3d at (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)). As long as the
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plaintiff has provided “information necessary to identify the defendant, the marshal’s failure to effect
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service is ‘automatically good cause . . . .’” Walker, 14 F.3d at 1422 (quoting Sellers v. United
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States, 902 F.2d 598, 603 (7th Cir. 1990). However, where a pro se plaintiff fails to provide the
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Marshal with accurate and sufficient information to effect service of the summons and complaint,
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the court’s dismissal of the unserved defendants is appropriate.
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On August 20, 2010, the United States Marshal returned the summons and USM-285 form
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for Defendants Kappa, Bhatt, and Montgomery, unexecuted. (ECF No. 44.) The Marshal attempted
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to secure a waiver of service but was unsuccessful in locating the defendants at Corcoran State
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Prison. The Court issued an order to show cause why defendants should not be dismissed for failure
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to effect service of process which was discharged following Plaintiff’s response. (ECF Nos. 45, 49,
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56.) On April 8, 2011, a second order directing the United States Marshall to serve Defendants
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Bhatt, Kappa, Montgomery, and Spears issued. (ECF No. 62.) On May 2, 2011, the summons and
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USM-285 form for Defendants Kappe and Spears were returned, unexecuted. (ECF No. 63.) The
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Marshal attempted to secure a waiver of service but was unsuccessful in locating Defendants Kappe
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or Spears at Corcoran State.
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On August 16, 2011, an order issued directing the United States Marshal to seek the
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assistance of the Legal Affairs Division of the CDCR in serving Defendants Kappa and Spears.
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(ECF No. 66.) On October 19, 2011, the summonses for Defendants Kappa and Spears were
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returned unexecuted, stating that two attempts by the Office of Legal Affairs had been made to locate
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each defendant and there was no evidence of employment. (ECF No. 77.) The Court does not find
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good cause to order the Marshal to make a fourth attempt at service.
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Accordingly, Defendants Kappa and Spears are HEREBY DISMISSED from this action,
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without prejudice, for Plaintiff’s failure to effect service pursuant to Federal Rule of Civil Procedure
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4(m).
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IT IS SO ORDERED.
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Dated:
b9ed48
November 10, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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