(PC) Phelps v. Perez ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 PAUL PHELPS, Case No. 1:22-cv-01406-ADA-SAB (PC) 10 Plaintiff, ORDER TO SHOW CAUSE WHY 11 DEFENDANT BETTIS SHOULD NOT BE v. DISMISSED PURSUANT TO FEDERAL 12 RULE OF CIVIL PROCEDURE 4(M) MANUEL PEREZ, et al., 13 (ECF No. 18) Defendants. 14 15 16 Plaintiff Paul Phelps is proceeding pro se and in forma pauperis in this civil rights action 17 filed pursuant to 42 U.S.C. § 1983. 18 This case is proceeding on Plaintiff’s excessive force claim against Defendants 19 Townsend and Bettis in violation of the Fourteenth Amendment, supervisory liability claim 20 against Defendant Manuel Perez in violation of the Fourteenth Amendment, and Monell liability 21 claim against the County of Madera in violation of the Fourteenth Amendment. (ECF No. 14.) 22 On May 9, 2023, the United States Marshal (USM) returned the summons unexecuted as 23 to Defendant Bettis, noting that the Litigation Coordinator at Valley State Prison indicated there 24 is no record of an officer Bettis employed at the prison. (ECF No. 18.) 25 /// 26 /// 27 /// /// 1 Pursuant to Federal Rule of Civil Procedure 4: 2 If a defendant is not served within 90 days after the complaint is filed, the court “on 3 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 4 if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 5 Fed. R. Civ. P. 4(m). 6 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 7 the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “[A]n incarcerated 8 pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of 9 the summons and complaint and ... should not be penalized by having his action dismissed for 10 failure to effect service where the U.S. Marshal or the court clerk has failed to perform his 11 duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 12 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 13 (1995). “So long as the prisoner has furnished the information necessary to identify the 14 defendant, the marshal's failure to effect service is ‘automatically good cause....’ ” Walker, 14 15 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)). However, 16 where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to 17 effect service of the summons and complaint, the court's sua sponte dismissal of the unserved 18 defendants is appropriate. Walker, 14 F.3d at 1421-22. 19 Because the USM has not been successful in locating Defendant Bettis, pursuant to Rule 20 4(m), the court will provide Plaintiff with an opportunity to show cause why Defendant Bettis, 21 should not be dismissed from this action for failure to serve process. If Plaintiff is unable to 22 provide the USM with additional information, Defendant Bettis shall be dismissed from this 23 action. 24 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 25 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show 26 cause why Defendant Bettis should not be dismissed from this action pursuant to Rule 4(m); and 27 /// 1 2. Plaintiffs failure to respond to this order will result in a recommendation that 2 | Defendant Bettis be dismissed from the action, without prejudice. 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ May 10, 2023 " ‘ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28