Brummett v. Sillen et al
Filing
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ORDER to SHOW CAUSE Regarding Defendant Doe 1 35 ; Plaintiff's Response Due Within Fourteen Days, signed by Magistrate Judge Dennis L. Beck on 11/16/11. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MELVIN BRUMMETT, JR.,
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CASE NO. 1:06-CV-01255-LJO-DLB PC
Plaintiff,
ORDER TO SHOW CAUSE REGARDING
DEFENDANT DOE 1
v.
(DOC. 35)
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ROBERT SILLEN, et al.,
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PLAINTIFF’S RESPONSE DUE WITHIN
FOURTEEN DAYS
Defendants.
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/
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Plaintiff Melvin Brummett, Jr. (“Plaintiff”) is a prisoner in the custody of the California
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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding
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on Plaintiff’s third amended complaint against Defendants S. Kaur and Doe 1. Defendant Doe 1
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has not been served or appeared in this action.
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On November 19, 2010, the United States Marshal returned the summons unexecuted as
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to Defendant Doe 1. Doc. 35. On January 7, 2011, the Court granted Plaintiff leave to provide
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additional information as to the identity of Defendant Doe 1 for the United States Marshal to
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effect service. Doc. 39. As of the date of this order, Plaintiff has not provided additional
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information.
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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
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pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of
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the summons and complaint and ... should not be penalized by having his action dismissed for
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failure to effect service where the U.S. Marshal or the court clerk has failed to perform his
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duties.’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912
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F.2d 270, 275 (9th Cir. 1990)), abrogated in part on other grounds, Sandin v. Conner, 515 U.S.
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472 (1995). “So long as the prisoner has furnished the information necessary to identify the
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defendant, the marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker, 14
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F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However,
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where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to
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effect service of the summons and complaint, the Court’s sua sponte dismissal of the unserved
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defendants is appropriate. Walker, 14 F.3d at 1421-22.
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Here, more than ten months have passed since the Court’s January 7, 2011 Order, and
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Plaintiff has not provided additional information for the United States Marshal to effect service
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of process as to Defendant Doe 1. Accordingly, the Court HEREBY ORDERS Plaintiff to show
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cause why Defendant Doe 1 should not be dismissed from this action for Plaintiff’s failure to
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provide sufficient information for the United States Marshal to effect service of process.
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Plaintiff is granted fourteen (14) days from the date of service of this order in which to show
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cause. Failure to respond or to otherwise show cause will result in dismissal of Defendant Doe 1
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from this action without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
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IT IS SO ORDERED.
Dated:
3b142a
November 16, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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