Fields v. Roberts
Filing
67
ORDER to SHOW CAUSE Why Defendant Roberts Should Not Be Dismissed From This Action for Failure to Effect Service 66 , signed by Magistrate Judge Gary S. Austin on 11/2/11. Thirty Day Deadline. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KEVIN E. FIELDS,
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Plaintiff,
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1:06-cv-00407-AWI-GSA-PC
ORDER TO SHOW CAUSE WHY
DEFENDANT ROBERTS SHOULD NOT BE
DISMISSED FROM THIS ACTION FOR
FAILURE TO EFFECT SERVICE
(Doc. 66.)
v.
P. ROBERTS, et al.,
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Defendants.
THIRTY DAY DEADLINE
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I.
BACKGROUND
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Kevin E. Fields (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in
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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this
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action on April 10, 2006. (Doc. 1.) This action now proceeds on Plaintiff's Fifth Amended
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Complaint filed on June 24, 2010, against defendant P. Roberts for retaliation against Plaintiff from
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February 28, 2006 to March 15, 2006, and defendant Jeff Neubarth for deliberate indifference.1
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(Doc. 51.)
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On October 31, 2011, the United States Marshal (“Marshal”) filed a return of service
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unexecuted, indicating the Marshal was unable to locate Defendant Roberts for service of process.
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(Doc. 66.)
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The remaining claims against defendant Roberts were dismissed from this action by the Court on March
17, 2011, based on Plaintiff’s failure to state a claim upon which relief could be granted. (Doc. 56.)
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II.
SERVICE BY UNITED STATES MARSHAL
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Pursuant to Rule 4(m),
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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.
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Fed. R. Civ. P. 4(m).
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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)(2). “‘[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.’” Walker
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v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th
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Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the
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prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to
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effect 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 sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-
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22.
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Background
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On March 28, 2011, the Court issued an order directing the Marshal to initiate service of
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process upon defendants in this action. (Doc. 59.) On May 19, 2011, the Marshal filed a return of
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service unexecuted as to defendant Roberts. (Doc. 60.) The return of service indicated that the
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Marshal was unable to locate defendant Roberts; defendant Roberts was not listed as employed at
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the facility; and the CDC Locator did not have record of defendant Roberts. (Doc. 60.) On
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September 22, 2011, the Court issued an order directing the Marshal to again attempt to locate and
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serve defendant Roberts, using the assistance of the CDCR’s Legal Affairs Division. (Doc. 63.) The
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Marshal’s second attempt to locate and serve defendant Roberts was unsuccessful, and on October
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31, 2011, the Marshal filed a return of service unexecuted indicating that the Legal Affairs Division
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reported that defendant Roberts was never employed by the CDCR, worked for a contractor
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company, is no longer employed, and moved out of state. (Doc. 66.)
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Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause
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why defendant Roberts should not be dismissed from this action at this time for inability to serve
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process. Plaintiff has not provided sufficient information to identify and locate defendant Roberts
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for service of process, and the Marshal was unable to locate defendant Roberts using the assistance
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of the CDCR’s Legal Affairs Division. If Plaintiff is unable to provide the Marshal with additional
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information, defendant Roberts shall be dismissed from the action.
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III.
CONCLUSION
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Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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1.
Within thirty (30) days from the date of service of this order, Plaintiff shall show
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cause why defendant Roberts should not be dismissed from this action pursuant to
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Rule 4(m); and
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2.
The failure to respond to this order or the failure to show cause will result in the
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dismissal of defendant Roberts from this action, and may result in the dismissal of
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this action in its entirety for failure to comply with a court order.
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IT IS SO ORDERED.
Dated:
6i0kij
November 2, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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