Fernandez v. MCC

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARCELO LARIOS FERNANDEZ, Case No.: 3:20-cv-01265-GPC-AHG Reg. No. 87515-298, 12 ORDER FOLLOWING ORDER TO Plaintiff, 13 SHOW CAUSE AND DISMISSING v. CIVIL ACTION FOR FAILURE TO 14 SERVE MCC, Metropolitan Correctional Center; 15 C/O SANDOVAL, John DOES 1-4, 16 Defendants. 17 18 19 On November 30, 2022, the Court issued an order to show cause why the third 20 amended complaint should not be dismissed for failing to effect service pursuant to Federal 21 Rule of Civil Procedure (“Rule”) 4(m) and directed that Plaintiff file a response on or 22 before December 23, 2022. (Dkt. No. 36.) To date, Plaintiff has not filed a response. 23 On November 26, 2021, Plaintiff, proceeding pro se and in forma pauperis, filed the 24 operative third amended complaint (“TAC”). (Dkt. No. 30.) On January 25, 2022, upon 25 screening of the TAC pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the Court 26 concluded that the TAC alleged a plausible claim against Defendant C/O Sandoval and 27 directed the U.S. Marshal to effect service of the TAC upon Defendant C/O Sandoval 28 pursuant to 28 U.S.C. § 1915(d) and Federal Rule of Civil Procedure 4(c)(3). (Dkt. No. 1 On September 19, 2022, the U.S. Marshal filed USM 285 or Process, Receipt and 2 || Return, indicating that it was not able to locate Defendant C/O Sandoval at the addressed 3 || provided by Plaintiff. (Dkt. No. 35.) While a plaintiff proceeding in forma pauperis is 4 |/entitled to rely on the U.S. Marshal for service of the summons and complaint, he is 5 responsible for providing the information, such as an address, needed to effectuate service. 6 || See Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). Plaintiff has filed to provide an 7 || updated or corrected address and has failed to seek relief from his failure to effect service 8 |}on Defendant C/O Sandoval. 9 “Tf a defendant is not served within 90 days after the complaint is filed, the court-- 10 motion or on its own after notice to the plaintiff--must dismiss the action without 11 || prejudice against that defendant or order that service be made within a specified time. But 12 the plaintiff shows good cause for the failure, the court must extend the time for service 13 an appropriate period.” Fed. R. Civ. P. 4(m). 14 Here, Plaintiff was advised of his obligation to serve process, was given an 15 ||}opportunity to seek relief from his failure to effect service, and failed to respond to the 16 || order to show cause. Accordingly, Court DISMISSES this civil action in its entirety based 17 Plaintiff's failure to effect service pursuant to Rule 4(m). 18 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 19 || pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of 20 || dismissal and close the file. 21 IT IS SO ORDERED. 22 ||Dated: May 9, 2023 C2. □□ 23 Hon. aah Code 4 United States District Judge 25 26 27 28 2