(PC) Muhammad v. Moreno, No. 1:2016cv00577 - Document 20 (E.D. Cal. 2018)
Court Description: ORDER for Plaintiff to SHOW CAUSE why the Court Should Not Issue Findings and Recommendations, Recommending that Defendant Ramirez be Dismissed from this Action, Without Prejudice Pursuant to Federal Rule of Civil Procedure 4(M), signed by Magistrate Judge Erica P. Grosjean on 5/9/18. Show Cause Response Due Withint 21-Days. (Gonzalez, R)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 Case No. 1:16-cv-00577-LJO-EPG (PC) MAURICE MUHAMMAD, 11 Plaintiff, 15 ORDER FOR PLAINTIFF TO SHOW CAUSE WHY THE COURT SHOULD NOT ISSUE FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT RAMIREZ BE DISMISSED FROM THIS ACTION, WITHOUT PREJUDICE, PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(M) 16 (ECF NO. 14) 17 TWENTY-ONE DAY DEADLINE 12 13 14 v. MORENO, et al., Defendants. 18 19 20 Maurice Muhammad (“Plaintiff”) is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 21 This case now proceeds on Plaintiff’s First Amended Complaint (ECF No. 9), “against 22 Officer Moreno for violation of Plaintiff’s Eights Amendment rights and against Officers 23 Moreno, Bejar, and Ramirez for First Amendment retaliation.” (ECF No. 11, p. 6). 24 After the appropriate service documents were completed and returned (ECF No. 12), the 25 Court ordered the United States Marshal Service (“the Marshal”) to serve Defendants (ECF No. 26 13). On March 6, 2018, the summons for defendant Ramirez was returned unexecuted. (ECF 27 No. 14). According to the Marshal, the litigation coordinator at MCCF was unable to accept 28 service of the summons because defendant Ramirez was never a California Department of 1 1 Corrections and Rehabilitation (“CDCR”) employee, and was terminated from employment. 2 (Id.). The CDCR was unable to provide a forwarding address or any identifying information. 3 (Id.). 4 Pursuant to Federal Rule of Civil Procedure 4(m), 5 If a defendant is not served within 90 days after the complaint is filed, the court B on motion or on its own after notice to the plaintiff B 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. 6 7 8 Fed. R. Civ. P. 4(m). 9 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 10 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “‘[A]n 11 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 12 for service of the summons and complaint and ... should not be penalized by having his action 13 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 14 perform his duties….’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett 15 v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other 16 grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has furnished the 17 information necessary to identify the defendant, the marshal=s failure to effect service is 18 >automatically good cause….’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 19 F.2d 598, 603 (7th Cir.1990)). However, where a pro se plaintiff fails to provide the Marshal 20 with accurate and sufficient information to effect service of the summons and complaint, 21 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421-22. 22 The return of service filed by the Marshal indicates that, according to the litigation 23 coordinator, defendant Ramirez was never a CDCR employee, and was terminated from 24 employment. (ECF No. 14). Defendant Ramirez did not leave a forwarding address. (Id.). 25 There is no indication on the return of service that the Marshal received a response from 26 defendant Ramirez. (Id.). The Marshal certified that he or she was unable to locate defendant 27 Ramirez. (Id.). 28 Plaintiff has not provided another address for defendant Ramirez, or even requested the 2 1 issuance of a third party subpoena so that he can attempt to find defendant Ramirez’s current 2 address. 3 Accordingly, pursuant to Rule 4(m), the Court will provide Plaintiff with an opportunity 4 to show cause why defendant Ramirez should not be dismissed from the case because of 5 Plaintiff’s failure to provide the Marshal with accurate and sufficient information to effect 6 service of the summons and complaint on defendant Ramirez. If Plaintiff is unable to provide 7 the Marshal with additional information, and if he does not request the issuance of a third party 8 subpoena so that he can attempt to find defendant Ramirez’s current address, the Court will 9 issue findings and recommendations to the assigned district judge, recommending that 10 defendant Ramirez be dismissed from the case, without prejudice. 11 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 12 1. Within twenty-one (21) days from the date of service of this order, Plaintiff shall 13 show cause why the Court should not issue findings and recommendations to the 14 assigned district judge, recommending that defendant Ramirez be dismissed from 15 this action, without prejudice, pursuant to Federal Rule of Civil Procedure 4(m); and 16 2. Failure to respond to this order may result in defendant Ramirez being dismissed 17 from this action, without prejudice. 18 19 20 IT IS SO ORDERED. Dated: May 9, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3
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