Perez v. Dill et al

Filing 71

ORDER DISMISSING Defendant Vieth for Failure to Effect Service of Process, signed by District Judge Lawrence J. O'Neill on 6/9/2011. (Marrujo, C)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SAUL BARRIOS PEREZ, 10 11 12 13 CASE NO. 1:07-cv-01794-LJO-SMS PC Plaintiff, ORDER DISMISSING DEFENDANT VIETH FOR FAILURE TO EFFECT SERVICE OF PROCESS v. DILL, et al., Defendants. / 14 15 Plaintiff Saul Barrios Perez (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on 17 Plaintiff’s first amended complaint, filed July 22, 2008, against Defendants Dill, Harden, Sobbe, 18 Sandoval, Tyson, Chan, Vieth, and Brown for deliberate indifference to conditions of confinement 19 in violation of the Eighth Amendment. 20 On April 22, 2011, an order issued requiring Plaintiff to show cause why Defendant Vieth 21 should not be dismissed from this action due to Plaintiff’s failure to provide information sufficient 22 to identify the person to be served. Plaintiff was specifically advised that pursuant to Federal Rule 23 of Civil Procedure 4(m), the court may, on its own motion, after notice to Plaintiff, dismiss a 24 defendant who has not been served within 120 days after the complaint has been filed. Plaintiff was 25 also advised that, so long as he provides the United States Marshal with the information necessary 26 to identify the defendant, good cause exists to extend the time for service set out in Rule 4(m). 27 Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 28 275 (9th Cir. 1990)) abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). 1 1 On June 8, 2011, Plaintiff filed a response stating that Defendant Vieth should not be dismissed 2 because she violated his civil rights. Additionally he argues that Defendant Vieth was employed, 3 and is probably still employed, by the California Department of Corrections and Rehabilitation. 4 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 5 Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 6 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 7 summons and complaint and . . . should not be penalized by having his action dismissed for failure 8 to effect service where the U.S. Marshal or the court clerk has failed to perform his duties . . . .” 9 Walker, 14 F.3d at (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)). As long as the 10 plaintiff has provided “information necessary to identify the defendant, the marshal’s failure to effect 11 service is ‘automatically good cause . . . .’” Walker, 14 F.3d at 1422 (quoting Sellers v. United 12 States, 902 F.2d 598, 603 (7th Cir. 1990). However, where a pro se plaintiff fails to provide the 13 Marshal with accurate and sufficient information to effect service of the summons and complaint, 14 the court’s dismissal of the unserved defendants is appropriate. 15 On August 26, 2009, the United States Marshal returned the summons and USM-285 form 16 for Defendant Vieth, unexecuted. On March 19, 2010, a second order was issued directing the 17 United States Marshal to contact the Legal Affairs Division of the California Department of 18 Corrections and Rehabilitation to attempt service on Defendant Vieth using additional information 19 provided by Plaintiff. On March 31, 2011, the summons was again returned unexecuted. 20 The Marshal has attempted to serve Defendant Vieth on two separate occasions. Plaintiff 21 was ordered to provide further information to assist the Marshal with effecting service of process on 22 the defendant. Plaintiff provided the information and the Marshal undertook sufficient inquiry to 23 identify the defendant. The information provided by Plaintiff was not sufficient to identify the party 24 to be served. In his response to the order to show cause Plaintiff fails to address the issue noted, his 25 efforts to furnish information necessary to further identify Defendant Vieth. The Court does not find 26 good cause to order the Marshal to make a third attempt at service. 27 /// 28 /// 2 1 2 Accordingly, Defendant Vieth is HEREBY DISMISSED from this action, without prejudice, for Plaintiff’s failure to effect service pursuant to Federal Rule of Civil Procedure 4(m). 3 4 IT IS SO ORDERED. 5 Dated: b9ed48 June 9, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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