(PC) Robinson v. Davey ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY L. ROBINSON, 1:17-cv-01524-DAD-GSA-PC 12 Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE WHY DEFENDANT GONZALEZ- 13 vs. THOMPSON SHOULD NOT BE DISMISSED FOR PLAINTIFF’S FAILURE 14 DAVE DAVEY, et al., TO EFFECT SERVICE (ECF No. 65.) 15 Defendants. THIRTY DAY DEADLINE 16 17 18 I. RELEVANT PROCEDURAL HISTORY 19 Anthony L. Robinson (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis 20 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on Plaintiff’s 21 First Amended Complaint filed on July 2, 2018, against defendant C/O H. German for use of 22 excessive force, and against defendants Sgt. A. Peterson and S. Gonzales-Thompson (LVN) for 23 providing inadequate medical care in violation of the Eighth Amendment. (ECF No. 24.) 24 On August 22, 2019, the court issued an order directing the United States Marshal 25 (“Marshal”) to serve process upon defendants German, Peterson, and Gonzales-Thompson. 26 (ECF No. 57.) On June 15, 2020, the Marshal filed a return of service unexecuted as to defendant 27 Gonzales-Thompson indicating that the Marshal was unable to locate defendant Gonzales- 28 Thompson for service of process. (ECF No. 65.) 1 II. SERVICE BY UNITED STATES MARSHAL 2 Pursuant to Rule 4(m), 3 If a defendant is not served within 120 days after the complaint is filed, the court B on motion or on its own after notice to the plaintiff B must dismiss the action 4 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 5 extend the time for service for an appropriate period. 6 Fed. R. Civ. P. 4(m). 7 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 8 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “[A]n incarcerated 9 pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of 10 the summons and complaint and . . . should not be penalized by having his action dismissed for 11 failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties.” 12 Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 13 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). 14 “So long as the prisoner has furnished the information necessary to identify the defendant, the 15 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker, 14 F.3d at 1422 16 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, where a pro se 17 plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of 18 the summons and complaint, the Court’s sua sponte dismissal of the unserved defendants is 19 appropriate. Walker, 14 F.3d at 1421-22. 20 Background 21 The return of service filed by the Marshal on June 15, 2020, indicates that on August 27, 22 2019, the Corcoran State Prison Litigation Coordinator reviewed all documents and contacted 23 the Medical Contractor, but there is no record of an employee named S. Gonzalez-Thompson. 24 (ECF No. 65.) The Marshal certified that he or she was unable to locate defendant S. Gonzalez- 25 Thompson. (Id.) 26 Pursuant to Rule 4(m), the Court will provide Plaintiff with an opportunity to show cause 27 why defendant S. Gonzalez-Thompson should not be dismissed from this action for failure to 28 serve process. Plaintiff has not as yet provided sufficient information to identify and locate 1 defendant S. Gonzalez-Thompson for service of process. If Plaintiff is unable to provide the 2 Marshal with additional information, defendant S. Gonzalez-Thompson shall be dismissed from 3 this action. 4 III. CONCLUSION 5 Accordingly, 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 7 cause why defendant S. Gonzalez-Thompson should not be dismissed from this 8 action pursuant to Rule 4(m); and 9 2. Plaintiff’s failure to respond to this order may result in the dismissal of defendant 10 S. Gonzalez-Thompson or dismissal of this action in its entirety. 11 IT IS SO ORDERED. 12 13 Dated: June 16, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28