(PC) York v. Ezenwugo ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DOROTHY YORK, 1:18-cv-00581-GSA-PC 12 Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE 13 v. DISMISSED FOR PLAINTIFF’S FAILURE TO PROVIDE ADDRESSES FOR SERVICE UPON 14 TOCHI E. EZENWUGO, et al., DEFENDANTS ADAME AND EZENWUGO 15 Defendants. THIRTY-DAY DEADLINE FOR PLAINTIFF TO FILE RESPONSE 16 17 18 19 I. BACKGROUND 20 Dorothy York (“Plaintiff”) is a former state prisoner proceeding pro se and in forma 21 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with 22 the original Complaint filed on April 30, 2018, against defendants Jennifer Adame and Tochi 23 Ezenwugo on Plaintiff’s Eighth Amendment medical claim. (ECF No. 1.) 24 On June 10, 2019, the court issued an order requiring Plaintiff to provide addresses within 25 thirty days to enable service of process upon defendants Adame and Ezenwugo. (ECF No. 15.) 26 Plaintiff was advised that the Marshal cannot serve defendants with a copy of the Complaint until 27 Plaintiff provides addresses for the defendants. The thirty-day time period has passed and 28 Plaintiff has not provided addresses for service or otherwise responded to the court’s order. 1 II. SERVICE BY UNITED STATES MARSHAL 2 Pursuant to Rule 4(m), 3 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 4 plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. 5 But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 6 Fed. R. Civ. P. 4(m). 7 8 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 9 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “‘[A]n 10 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 11 for service of the summons and complaint and . . . should not be penalized by having his action 12 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 13 perform his duties.’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. 14 Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 15 515 U.S. 472 (1995). “So long as the prisoner has furnished the information necessary to identify 16 the defendant, the marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker, 17 14 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, 18 where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to 19 effect service of the summons and complaint, the Court’s sua sponte dismissal of the unserved 20 defendants is appropriate. Walker, 14 F.3d at 1421-22. 21 Discussion 22 Plaintiff has been granted ample opportunity but has not provided sufficient information 23 for the Marshal to locate defendants Jennifer Adame and Tochi Ezenwugo for service of process. 24 As discussed above, where a pro se plaintiff fails to provide the Marshal with accurate and 25 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 26 dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22. If Plaintiff 27 cannot provide additional information to enable the Marshal to locate defendants Adame and 28 /// 1 Ezenwugo for service of process, the defendants shall be dismissed from this action which will 2 result in the dismissal of this action in its entirety. 3 III. ORDER TO SHOW CAUSE 4 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 5 1. Within thirty (30) days from the date of service of this order, Plaintiff shall 6 respond in writing to this order, showing cause why defendants Adame and 7 Ezenwugo should not be dismissed from this action pursuant to Rule 4(m), 8 dismissing this action in its entirety; and 9 2. Plaintiff’s failure to respond to this order or her failure to show cause will result 10 in a recommendation that this case be dismissed in its entirety. 11 IT IS SO ORDERED. 12 13 Dated: August 9, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28