(PC) Butler v. Day ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARQUES BUTLER, ) Case No.: 1:20-cv-01650-SAB (PC) ) 12 Plaintiff, ) ) ORDER TO SHOW CAUSE WHY DEFENDANT 13 v. ) C. ALCALA SHOULD NOT BE DISMISSED PURSUANT TO RULE 4 14 R. DAY, et al., ) ) (ECF No. 26) 15 Defendants. ) ) 16 ) ) 17 ) 18 Plaintiff Marques Butler is proceeding pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 This case is proceeding on Plaintiff’s first amended complaint, filed on June 9, 2021 (ECF No. 21 15) against Defendant R. Day for excessive force, against Defendants C. Alcala and J. Aguire for 22 failing to intervene in the use of force, and against Defendants R. Day, C. Alcala, J. Aguire, J. 23 Barkhurst, and P. Perez for deliberate indifference to a serious medical need. 24 On July 27, 2021, the Court issued an order directing E-service of the complaint on Defendants 25 Day, Alcala, Acquire, Barkhurst, and Perez. (ECF No. 17.) On September 30, 2021, waivers of 26 service were returned executed by Defendants Day and Barkhurst. (ECF No. 23.) On October 15, 27 2021, waivers of service were returned executed by Defendants Acquire and Perez. (ECF No. 24.) 28 1 On October 15, 2021, the United States Marshal (“Marshal”) filed a return of service unexecuted for 2 Defendant C. Alcala. (ECF No. 26.) 3 Pursuant to Federal Rule of Civil Procedure 4: 4 If a defendant is not served within 90 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 5 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 Fed. R. Civ. P. 4(m). 8 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 9 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “[A]n incarcerated pro se 10 plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 11 summons and complaint and ... should not be penalized by having his action dismissed for failure to 12 effect service where the U.S. Marshal or the court clerk has failed to perform his duties.” Walker v. 13 Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 14 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the 15 prisoner has furnished the information necessary to identify the defendant, the marshal's failure to 16 effect service is ‘automatically good cause....’ ” Walker, 14 F.3d at 1422 (quoting Sellers v. United 17 States, 902 F.2d 598, 603 (7th Cir. 1990)). However, where a pro se plaintiff fails to provide the 18 Marshal with accurate and sufficient information to effect service of the summons and complaint, the 19 court's sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22. 20 The return of service filed by the Marshal on October 15, 2021, indicates that on October 15, 21 2021, personal serve was attempted on Defendant Alcala but could not be accomplished because 22 Alcala no longer lives at the address provided. (ECF No. 26.) Therefore, the Marshal returned process 23 unexecuted for Defendants Alcala. (ECF No. 26.) 24 Pursuant to Rule 4(m), the court will provide Plaintiff with an opportunity to show cause why 25 Defendant Alcala should not be dismissed from this action for failure to serve process. Plaintiff has 26 not provided sufficient information to identify and locate Defendants Alcala for service of process. If 27 Plaintiff is unable to provide the Marshal with additional information, Defendant Alcala shall be 28 dismissed from this action. 1 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 2 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show caus 3 || why Defendants C. Alcala should not be dismissed from this action pursuant to Rule 4(m); and 4 2. Plaintiff's failure to respond to this order will result in a recommendation that 5 || Defendant Alcala be dismissed from the action, without prejudice. 6 7 IT IS SO ORDERED. A (Fe _ 8 || Dated: _ October 18, 2021 OF 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28