Opinion
No. C 02-4126 SI (pr)
June 30, 2003
ORDER OF DISMISSAL
The court issued an order to show cause re. dismissal for failure to serve process on defendants and granted a requested extension of time for plaintiff to file his response. Plaintiff has now filed his response and amendment to response to the order to show cause. The court has considered the materials filed by plaintiff and determines that he has not shown diligence in his efforts to serve process on defendants in this case which has been pending for over ten months.
Plaintiff blames his failure to serve defendants on prison lockdowns, his movements in the prison system, and his lack of access to his legal materials. The events to which plaintiff points do not fully explain why he apparently has taken absolutely no steps to accomplish service of process — for example, with or without his legal papers, he could have been trying to figure out who on the outside of prison would aid him in getting the materials served and could have been trying to arrange for that service. As of a week ago, plaintiff had not accomplished service op any defendant and apparently had not even made arrangements to attempt service on defendants. This case has lingered far too long with no progress toward its resolution. See generally Lewis v. Casey. 518 U.S. 343, 355 (1996) (noting that earlier right of access to the courts case "does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims"). In the ten months this action has been pending, plaintiff has not served process on defendants and has not even attempted it, without good cause for his failure to do so. This action is DISMISSED without prejudice for failure to serve process on the defendants within the time allowed under Federal Rule of Civil Procedure 4(m).
At least one of his allegations is not believable. He writes in his response to the order to show cause that "since September 18, 2002 plaintiff has been without, or otherwise deprived of all legal and personal property in which to litigate this, and other, actions." Declaration In Support of Plaintiffs Response To Order To Show Cause. He filed a traverse in Case No C 01-1646 on October 31, 2002-a time at which he claims he had no legal or personal property and was on suicide watch.
IT IS SO ORDERED.
JUDGMENT
This action is DISMISSED without prejudice for failure to timely serve process on the defendants.IT IS SO ORDERED AND ADJUDGED.