(PC) Lamar v. Sonn ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEVIN TREVONE LAMAR, III, Case No. 1:23-cv-00462-HBK (PC) 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW CAUSE UNDER FEDERAL RULE OF CIVIL 13 v. PROCEDURE 4(m) and Fed. R. Civ. P. 41(b) 14 SONN and TOON, MARCH 8, 2024 DEADLINE 15 Defendants. 16 17 On January 5, 2024, the Court found service of Plaintiff’s Complaint appropriate as to 18 Defendants Sonn and Toon and directed Plaintiff to complete service documents and return them 19 to the Court within 30 days. (See Doc. No. 14). The Court warned Plaintiff that “[t]he failure to 20 comply with this order will result in dismissal of this action.” (Id. at 2, ¶ 5). To date, Plaintiff 21 has not returned the service documents and the time to do so has expired. 22 “If a defendant is not served within 90 days after the complaint is filed, the court – on 23 motion or on its own after notice to the plaintiff – must dismiss the action without prejudice 24 against that defendant or order that service be made within a specified time. But if the plaintiff 25 shows good cause for the failure, the court must extend the time for service for an appropriate 26 period.” Fed. R. Civ. P. 4(m). 27 A “pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for 28 service of the summons and complaint” after “having provided the necessary information to help 1 effectuate service” under 28 U.S.C. § 1915 and Rule 4. Puett v. Blandford, 912 F.2d 270, 275 2 | (9th Cir. 1990); accord, Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), abrogated in part 3 | on other grounds by Sandin v. Conner, 515 U.S. 472 (1995)). 4 When service cannot be accomplished due to the pro se plaintiff's failure to submit the 5 || required information, and the plaintiff fails to remedy the situation after being put on notice, 6 | dismissal without prejudice is appropriate. Walker, 14 F.3d at 1421-22 (holding that prisoner 7 | failed to show cause why his claims against prison official should not be dismissed under Rule 8 | 4(m) when prisoner failed to show “he provided the marshal with sufficient information to serve 9 | [the defendant]”). 10 Because Plaintiff has failed to submit the documents, Plaintiff is directed to show good 11 || cause why the defendants should not be dismissed under Rule 4(m) and/or why the Court should 12 | not dismiss this case for Plaintiff's failure to prosecute this action and comply with the Court’s 13 | January 5, 2024 Order. See Fed. R. Civ. P. 41(b); Local Rule 110. 14 Accordingly, it is ORDERED: 15 1. No later than March 8, 2024, Plaintiff shall either return completed the service 16 | documents previously provided by the Court; or, show good cause why the Defendants should not 17 | be dismissed under Federal Rule of Civil Procedure 4(m) and/or why this case should not be 18 || dismissed under Fed. R. Civ. P. 41(b) and/or Local Rule 110 for Plaintiff's failure to prosecute 19 | this action and comply with a Court Order. 20 2. Plaintiff is further advised, that if he fails to timely respond to this Order, the 21 | undersigned will recommend the district court dismiss this action. 22 *3 | Dated: _ February 20, 2024 Mile. Wh fareh fackte 24 HELENA M. BARCH-KUCHTA 35 UNITED STATES MAGISTRATE JUDGE 26 27 28