Perez v. Dill et al
Filing
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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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SAUL BARRIOS PEREZ,
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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.
/
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Plaintiff Saul Barrios Perez (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on
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Plaintiff’s first amended complaint, filed July 22, 2008, against Defendants Dill, Harden, Sobbe,
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Sandoval, Tyson, Chan, Vieth, and Brown for deliberate indifference to conditions of confinement
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in violation of the Eighth Amendment.
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On April 22, 2011, an order issued requiring Plaintiff to show cause why Defendant Vieth
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should not be dismissed from this action due to Plaintiff’s failure to provide information sufficient
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to identify the person to be served. Plaintiff was specifically advised that pursuant to Federal Rule
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of Civil Procedure 4(m), the court may, on its own motion, after notice to Plaintiff, dismiss a
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defendant who has not been served within 120 days after the complaint has been filed. Plaintiff was
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also advised that, so long as he provides the United States Marshal with the information necessary
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to identify the defendant, good cause exists to extend the time for service set out in Rule 4(m).
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Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270,
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275 (9th Cir. 1990)) abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).
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On June 8, 2011, Plaintiff filed a response stating that Defendant Vieth should not be dismissed
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because she violated his civil rights. Additionally he argues that Defendant Vieth was employed,
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and is probably still employed, by the California Department of Corrections and Rehabilitation.
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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 26, 2009, the United States Marshal returned the summons and USM-285 form
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for Defendant Vieth, unexecuted. On March 19, 2010, a second order was issued directing the
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United States Marshal to contact the Legal Affairs Division of the California Department of
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Corrections and Rehabilitation to attempt service on Defendant Vieth using additional information
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provided by Plaintiff. On March 31, 2011, the summons was again returned unexecuted.
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The Marshal has attempted to serve Defendant Vieth on two separate occasions. Plaintiff
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was ordered to provide further information to assist the Marshal with effecting service of process on
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the defendant. Plaintiff provided the information and the Marshal undertook sufficient inquiry to
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identify the defendant. The information provided by Plaintiff was not sufficient to identify the party
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to be served. In his response to the order to show cause Plaintiff fails to address the issue noted, his
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efforts to furnish information necessary to further identify Defendant Vieth. The Court does not find
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good cause to order the Marshal to make a third attempt at service.
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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).
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IT IS SO ORDERED.
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Dated:
b9ed48
June 9, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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