(PC) Rivera v. Davey ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICKY RIVERA, Case No. 1:16-cv-01817-AWI-BAM (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT CHAPOLEUN SHOULD NOT 13 v. BE DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT 14 DAVEY, et al., INFORMATION TO EFFECTUATE SERVICE 15 Defendants. (ECF No. 39) 16 THIRTY (30) DAY DEADLINE 17 18 I. Introduction 19 Plaintiff Ricky Rivera (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 21 Plaintiff’s second amended complaint against Defendants Robicheaux, Chapoleun, and Crain for 22 violations of the Free Exercise Clause of the First Amendment and against Defendant Davey for a 23 deficient policy that violates the Free Exercise Clause of the First Amendment. 24 II. Service by the United States Marshal 25 On March 17, 2020, the Court issued an order directing the United States Marshals 26 Service to initiate service of process in this action upon Defendants Robicheaux, Chapoleun, 27 Crain, and Davey. (ECF No. 35.) On April 24, 2020, the United States Marshals Service filed a 28 return of service unexecuted as to Defendant Chapoleun. (ECF No. 39.) 1 Federal Rule of Civil Procedure 4(m) provides as follows: 2 If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the 3 action without prejudice against that defendant or order that service be made 4 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. 5 6 Fed.R.Civ.P. 4(m). 7 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 8 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 9 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 10 summons and complaint, and . . . should not be penalized by having his or her action dismissed 11 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 12 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 13 long as the prisoner has furnished the information necessary to identify the defendant, the 14 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 15 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 16 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 17 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 18 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 19 Here, the U.S. Marshal attempted to serve Defendant Chapoleun with the information that 20 Plaintiff provided. However, the Marshal was informed of the following by the Litigation 21 Coordinator at CSP-Corcoran that the Chaplin at the time of the events alleged in the complaint 22 was Matthew Vannissery. He resigned on April 24, 2016, and he is no longer employed at CSP- 23 Corcoran. The Community Resource Manager at CSP-Corcoran indicated that the last she heard, 24 Mr. Vannissery was returning to his country. CSP-Corcoran therefore would not accept service 25 and had no forwarding address to provide. (ECF No. 39.) Plaintiff therefore has not provided 26 sufficient information to identify and locate Defendant Chapoleun—possibly Defendant 27 Vannissery—for service of process. If Plaintiff is unable to provide the Marshal with the 28 necessary information to identify and locate this defendant, Defendant Chapoleun shall be 1 dismissed from this action, without prejudice. Pursuant to Rule 4(m), the Court will provide 2 Plaintiff with the opportunity to show cause why Defendant Chapoleun should not be dismissed 3 from the action at this time. 4 III. Conclusion and Order 5 Based on the foregoing, it is HEREBY ORDERED that: 6 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 7 why Defendant SMV Chapoleun should not be dismissed from this action; and 8 2. The failure to respond to this order or the failure to show cause will result in the 9 dismissal of Defendant Chapoleun from this action due to Plaintiff’s failure to serve 10 process pursuant to Federal Rule of Civil Procedure 4(m). 11 IT IS SO ORDERED. 12 13 Dated: April 29, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28