(PC) Turner v. Adams ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT C. TURNER, No. 2:18-cv-2672 MCE DB P 12 Plaintiff, 13 v. ORDER 14 CA DEPT. CORR. AND REHAB., et al., 15 Defendants. 16 17 Plaintiff is a state prisoner who is proceeding pro se and in forma pauperis. Plaintiff seeks 18 relief pursuant to 42 U.S.C. § 1983. In this order, the court addresses plaintiff’s difficulties 19 serving defendant Anderson and orders plaintiff to show cause why Anderson should not be 20 dismissed from this action. 21 BACKGROUND 22 In June 2019, this court found service of the complaint appropriate on defendants Adams, 23 Church, and Anderson. Plaintiff originally submitted service documents for these defendants on 24 July 1, 2019. (ECF Nos. 17, 18.) On July 12, 2019, this court ordered the United States Marshal 25 (“USM”) to seek waiver of service from each defendant. (ECF No. 20.) On November 20, 2019, 26 an unexecuted summons was returned for defendant Anderson. (ECF No. 26.) A notation on the 27 summons stated “Per CDCR they do not have a Robert Anderson.” 28 //// 1 On November 25, 2019, this court ordered plaintiff to provide additional information to 2 serve defendant Anderson. (ECF No. 27.) Plaintiff was given two more opportunities to do so. 3 (See ECF Nos. 33, 36.) 4 On March 5, 2020, plaintiff filed a request for assistance in locating Anderson. (ECF No. 5 38.) Plaintiff explained that he and his spouse had attempted to locate Anderson through on-line 6 searches and through contact with several governmental agencies. Because plaintiff had made 7 significant efforts to locate Anderson, this court directed defendants’ counsel to attempt to obtain 8 a forwarding address for Anderson or other identifying information. In response, defendants’ 9 counsel provided information on Anderson, who was employed by CDCR as a contract physician 10 for a short period of time in 2017. Defendants’ counsel provided an address, phone number, and 11 e-mail address. (ECF No. 40.) 12 This court then ordered the USM to serve the complaint on Anderson at the address 13 provided by defendants’ counsel. However, process directed to Anderson was again returned 14 unserved. The USM was “unable to locate” Anderson at the address provided. (See ECF No. 15 47.) In addition, the USM noted that, according to a neighbor, Anderson had not resided at that 16 address since 2017. 17 DISCUSSION 18 Federal Rule of Civil Procedure 4(m) provides a time limit for service of a complaint: 19 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 20 dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff 21 shows good cause for the failure, the court must extend the time for service for an appropriate period. 22 23 While a plaintiff who has been granted in forma pauperis status is entitled to rely on the USM to 24 serve a defendant, it is the plaintiff’s duty to provide the defendant’s address. Walker v. Sumner, 25 14 F.3d 1415, 1422 (9th Cir. 1994) (“[W]here a pro se plaintiff fails to provide the Marshal with 26 accurate and sufficient information to effect service of the summons and complaint, the court’s 27 sua sponte dismissal of the unserved defendants is appropriate.”), overruled on other grounds by 28 Sandin v. Connor, 515 U.S. 472 (1995); see also Howard v. Encinas, No.1:18-cv-01710 DAD 2. UV VEVIEO OVS RMD MVMEUIEOCTIN STO POMOC EIVOreN FP OAYyet VI 1 | EPG, 2020 WL 2489634, at *2 (E.D. Cal. May 14, 2020) (same) (citing Walker, 14 F.3d at 1421- 2 22). 3 This court has given plaintiff a substantial period of time to attempt to locate defendant 4 | Anderson and enlisted the aid of defendants’ counsel as well. Plaintiff will be given one final 5 | opportunity to either provide Anderson’s address or show cause why Anderson should not be 6 | dismissed from this action. Plaintiff is advised that any dismissal of Anderson will be without 7 | prejudice. If plaintiff is later able to locate Anderson, the dismissal will not prevent plaintiff from 8 || pursuing an action against Anderson. 9 Accordingly, IT IS HEREBY ORDERED that within thirty days from the date of this 10 | order, plaintiff shall either provide an address for defendant Anderson or show cause why 11 | Anderson should not be dismissed from this action without prejudice. 12 | Dated: July 7, 2020 13 14 15 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 16 17 | DLB:9 18 DB/prisoner-civil rights/turn2672.8e(2) 19 20 21 22 23 24 25 26 27 28