McCoy v. County of Fresno, California et al
Filing
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ORDER to SHOW CAUSE Why Action Should Not Be Dismissed Pursuant to Rule 4(M), signed by Magistrate Judge Sheila K. Oberto on 6/23/2011. Show Cause Response due within thirty (30) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANTHONY MCCOY,
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CASE NO. 1:08-cv-00247-AWI-SKO PC
Plaintiff,
ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED PURSUANT
TO RULE 4(M)
v.
COUNTY OF FRESNO, et al.,
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(Doc. 14)
Defendants.
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Plaintiff Anthony McCoy, a state prisoner proceeding pro se and in forma pauperis, filed this
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civil rights action pursuant to 42 U.S.C. § 1983 on February 20, 2008. This action is proceeding
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against Defendant Nichols1 for failing to protect Plaintiff, in violation of the Due Process Clause or
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the Eighth Amendment of the United States Constitution.2 (Doc. 10.)
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The United States Marshals Service (USM) was ordered to initiate service of the summons
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and amended complaint on February 10, 2011. (Doc. 12.) On June 22, 2011, the USM returned the
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USM-285 form un-executed with a memorandum from the Fresno County Sheriff’s Office stating
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that Defendant Tim Nichols is deceased. (Doc. 14.)
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Rule 4(m) provides:
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[i]f 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
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Defendant is identified as Nicholes in the complaint.
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It is unclear if Plaintiff was a pretrial detainee at the time.
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for service for an appropriate period.
Fed. R. Civ. P. 4(m).
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In cases involving a plaintiff proceeding in forma pauperis, the USM, upon order of the
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Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
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“‘[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S.
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Marshal for service of the summons and complaint and . . . should not be penalized by having his
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action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to
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perform his duties.’” 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 on other grounds by Sandin v. Connor, 515
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U.S. 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 F.3d
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at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, where a pro
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se plaintiff fails to provide the USM with accurate and sufficient information to effect service of the
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summons and complaint, the Court’s sua sponte dismissal of the unserved defendants is appropriate.
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Walker, 14 F.3d at 1421-22.
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Defendant Nichols is deceased. Based on this information, dismissal of the action may be
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necessary. Plaintiff shall be provided with an opportunity to show cause why the action should not
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be dismissed. Fed. R. Civ. P. 4(m).
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Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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1.
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Within thirty (30) days from the date of service of this order, Plaintiff shall show
cause why this action should not be dismissed; and
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2.
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The failure to respond to this order or the failure to show cause will result in the
dismissal of this action.
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IT IS SO ORDERED.
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Dated:
ie14hj
June 23, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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