(PC) Jones v. Arnette ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMY JONES, 1:16-cv-01212-DAD-GSA-PC 12 Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE WHY DEFENDANTS LOPEZ AND VASQUEZ 13 vs. SHOULD NOT BE DISMISSED FOR PLAINTIFF’S FAILURE TO EFFECT SERVICE 14 ARNETTE, et al., (ECF No. 69.) 15 Defendants. THIRTY DAY DEADLINE 16 17 18 19 20 I. BACKGROUND 21 Jeremy Jones (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act 23 (ADA), 42 U.S.C. § 12132. This case now proceeds with Plaintiff’s Second Amended 24 Complaint, filed on September 10, 2018, on (1) Plaintiff’s ADA claims against defendants 25 Vasquez, Keener, Gonzales,1 Flores, Arnett,2 Zamora, and Lopez, in their official capacities; 2) 26 27 1 Sued as Gonzalez. 28 2 Sued as Arnette. 1 Plaintiff’s Eighth Amendment conditions of confinement claims against defendants Vasquez, 2 Keener, and Gonzales; and (3) Plaintiff’s due process claims against defendants Vasquez, 3 Keener, and Gonzales. (ECF No. 33.) 4 On June 8, 2020, the court issued an order directing E-service on defendants Vasquez, 5 Keener, Gonzales, Flores, Arnett, Zamora, and Lopez. (ECF No. 48.) On August 17, 2020, 6 waivers of service were returned executed by defendants Flores, Arnett, and Keener. (ECF No. 7 53.) On September 4, 2020, a waiver of service was returned executed by defendant Gonzales. 8 (ECF No. 54.) On October 30, 2020, defendants Arnett, Flores, Gonzales, and Keener filed an 9 Answer to the complaint. (ECF No. 57.) On February 28, 2021, the United States Marshal 10 (“Marshal”) filed returns of service unexecuted for defendants Vasquez and Lopez. (ECF No. 11 69.) On March 19, 2021, the Marshal filed a return of service executed for defendant Zamora. 12 (ECF No. 71.) 13 II. SERVICE BY UNITED STATES MARSHAL 14 Pursuant to Rule 4(m), 15 If 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 16 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 17 extend the time for service for an appropriate period. 18 Fed. R. Civ. P. 4(m). 19 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 20 the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “[A]n incarcerated 21 pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service 22 of the summons and complaint and . . . should not be penalized by having his action dismissed 23 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his 24 duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 25 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 26 (1995). “So long as the prisoner has furnished the information necessary to identify the 27 defendant, the marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker, 14 28 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)). However, 1 where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to 2 effect service of the summons and complaint, the court’s sua sponte dismissal of the unserved 3 defendants is appropriate. Walker, 14 F.3d at 1421-22. 4 Background 5 The returns of service filed by the Marshal on February 8, 2021, indicate that on February 6 8, 2021, the Marshal returned process unexecuted for defendants Vasquez and Lopez because 7 there was not enough information to identify them. (ECF No. 69.) 8 Pursuant to Rule 4(m), the court will provide Plaintiff with an opportunity to show cause 9 why defendants Vasquez and Lopez should not be dismissed from this action for failure to serve 10 process. Plaintiff has not provided sufficient information to identify and locate defendants 11 Vasquez and Lopez for service of process. If Plaintiff is unable to provide the Marshal with 12 additional information, defendants Vasquez and Lopez shall be dismissed from this action. 13 III. CONCLUSION 14 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 15 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show 16 cause why defendants Vasquez and Lopez should not be dismissed from this 17 action pursuant to Rule 4(m); and 18 2. Plaintiff’s failure to respond to this order may result in the dismissal of defendants 19 Vasquez and Lopez or dismissal of this action in its entirety. 20 IT IS SO ORDERED. 21 22 Dated: March 24, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28