Opinion
Case No. 1:19-cv-01711-DAD-SAB
03-25-2020
WILLIAM JESSE GILLIAM, Plaintiff, v. BARBARA HOPE O'NEILL, et al., Defendants.
ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY CERTAIN DEFENDANTS SHOULD NOT BE DISMISSED FOR FAILURE TO SERVE IN COMPLIANCE WITH RULE 4(m) OF THE FEDERAL RULES OF CIVIL PROCEDURE FOURTEEN DAY DEADLINE
I.
PROCEDURAL BACKGROUND
William Jesse Gilliam ("Plaintiff"), proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 against Barbara Hope O'Neill, the County of Fresno, Phil Larson, Susan B. Anderson, Henry R. Perea, Judy Case McNairy, Deporah Poochigian, Andreas Boregas, Buddy Mendez, Brian Pacheco, Ken Taniguchi, and Elizabeth Diaz ("Defendants") based on delays in bringing him to trial on allegations that he was a sexually violent predator. An order setting the mandatory scheduling conference filed on December 11, 2019. Plaintiff was ordered to serve the summons and complaint in compliance with Rule 4 of the Federal Rules of Civil Procedure.
On February 11, 2020, due to the upcoming scheduling conference, an order issued requiring Plaintiff to either file proof of service of the summons and complaint on the defendants or a notice regarding the status of service on the defendants within fourteen days. More than fourteen days passed without Plaintiff complying with or otherwise responded to the February 11, 2020 order.
On March 4, 2020, findings and recommendations were filed recommending that this action be dismissed for Plaintiff's failure to comply with the February 11, 2020 order and failure to prosecute. Plaintiff was to file objections within fourteen days. On March 10, 2020, proof of service was returned showing that Brian Pacheco and Buddy Mendez were served on March 6, 2020. Plaintiff did file objections to the March 4, 2020 findings and recommendations or otherwise respond.
The Court does not address whether the defendants were properly served in this order. --------
II.
DISCUSSION
The order setting the mandatory scheduling conference informed Plaintiff that he was to "diligently pursue service of the summons and complaint" and "promptly file proofs of the service." (ECF No. 4 at 1.) Plaintiff was referred to Rule 4 of the Federal Rules of Civil Procedure regarding the requirement of timely service of the complaint. (Id. at 1-2.) Further, Plaintiff was advised that "[f]ailure to comply may result in the imposition of sanctions, including dismissal of unserved Defendants." (Id. at 2.)
Rule 4(m) of the Federal Rules of Civil Procedure addresses the time requirements for service of the complaint in civil cases. Rule 4(m) provides:
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 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.
Here, Plaintiff has not filed proof demonstrating that Barbara Hope O'Neill, the County of Fresno, Phil Larson, Susan B. Anderson, Henry R. Perea, Judy Case McNairy, Deporah Poochigian, Andreas Boregas, Ken Taniguchi, or Elizabeth Diaz have been served in this action. Further, Plaintiff did not timely respond to the order to show cause nor has he filed objections to the March 4, 2020 findings and recommendations recommending that this action be dismissed for his failure to comply and failure to prosecute.
Plaintiff is advised that he is required to comply with court orders and filing the two proofs of service after the deadline had passed to respond to this court's February 11, 2020 order was not compliance with the order. Plaintiff has not addressed his failure to serve the summons and complaint nor did he request an extension of time to do so. At this juncture it appears to the Court that Plaintiff is not prosecuting this action. Plaintiff is required to file a response to this order and is advised his failure to do so will result in the Court's March 4, 2020 findings and recommendation being adopted.
Accordingly, Plaintiff is HEREBY ORDERED to show cause in writing within fourteen (14) days from the date of service of this order why Barbara Hope O'Neill, the County of Fresno, Phil Larson, Susan B. Anderson, Henry R. Perea, Judy Case McNairy, Deporah Poochigian, Andreas Boregas, Ken Taniguchi, and Elizabeth Diaz should not be dismissed from this action for Plaintiff's failure to serve the complaint in compliance with Rule 4(m) of the Federal Rules of Civil Procedure.
Plaintiff is further advised that failure to file a response to this order will result in this action being dismissed for failure to obey a court order and failure to prosecute. IT IS SO ORDERED. Dated: March 25 , 2020
/s/_________
UNITED STATES MAGISTRATE JUDGE