(PC) Stratford v. Brazelton ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ERIC STRATFORD, Case No. 1:17-cv-00766-JDP 10 Plaintiff, ORDER TO SHOW CAUSE WHY THIS 11 v. CASE SHOULD NOT BE DISMISSED FOR FAILURE TO EFFECT SERVICE 12 ARNOLD SCHWARZENEGGER, THIRTY-DAY DEADLINE 13 Defendant. 14 15 Plaintiff Eric Stratford is a former state prisoner proceeding without counsel and in 16 forma pauperis in this civil rights action brought under 42 U.S.C. § 1983. After screening, this 17 case is proceeding only on plaintiff’s Eighth Amendment claim against defendant Arnold 18 Schwarzenegger. ECF No. 28. The court directed service on May 18, 2020. ECF No. 26. 19 Defendant Schwarzenegger has not been served. The United States Marshals Service 20 was unable to locate defendant, and the summons was returned unexecuted. ECF No. 30. 21 Federal Rule of Civil Procedure 4(m) provides: “If a defendant is not served within 90 22 days after the complaint is filed, the court—on motion or on its own after notice to the 23 plaintiff—must dismiss the action without prejudice against that defendant or order that service 24 be made within a specified time.” In cases involving a plaintiff proceeding in forma pauperis, 25 the Marshals Service, upon order of the court, shall serve the summons and the complaint. 26 Fed. R. Civ. P. 4(c)(3). However, where a plaintiff proceeding in forma pauperis fails to 27 provide the Marshals Service with accurate and sufficient information to effect service of the wOow 4:48 EU EAE VET MMU Oo POI Ve te OY eV 1 | summons and complaint, dismissal of the unserved defendant is appropriate. See Walker v. 2 | Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994). 3 Accordingly, pursuant to Rule 4(m), the court will provide plaintiff with an opportunity 4 | to show cause why this case should not be dismissed for failure to provide the marshals with 5 | sufficient information to effect service of the summons and complaint. If plaintiff is unable to 6 | do so, the court will issue findings and recommendations to an assigned district judge, 7 | recommending that the case be dismissed without prejudice. 8 Accordingly, it is hereby ordered that within thirty days from the date of this order, 9 | plaintiff must show cause why the court should not issue findings and recommendations 10 | recommending that this case be dismissed pursuant to Federal Rule of Civil Procedure 4(m). 11 b T IS SO ORDERED. 13 ( _was ated: _ September 11, 2020 14 UNI STATES MAGISTRATE JUDGE 15 16 No. 205. 17 18 19 20 21 22 23 24 25 26 27 28