(PC) Kirchner v. Biter ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KRISTOPHER KIRCHNER, Case No. 1:18-cv-00516-AWI-BAM (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT PEREZ SHOULD NOT BE 13 v. DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT 14 BITER, et al., INFORMATION TO EFFECTUATE SERVICE 15 Defendants. (ECF No. 23) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff Kristopher Kirchner (“Plaintiff”) is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 20 Plaintiff’s first amended complaint for Fourteenth Amendment due process claims against 21 Defendants Henderson, Harden, Diaz, and Perez arising from Plaintiff’s disciplinary proceedings. 22 On December 16, 2020, the Court issued an order directing service on Defendants 23 Henderson, Harden, Diaz, and Perez in this case under the Court’s E-Service pilot program for 24 civil rights cases for the Eastern District of California. (ECF No. 23.) The order included the 25 following information regarding Defendant Perez: “Investigative Employee J. Perez; KVSP; 26 approximately March to June 2014.” (Id. at 2.) The same date, the Court received information 27 that there was not enough information to identify Defendant J. Perez. 28 /// 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 3 court—on motion or on its own after notice to the plaintiff—must dismiss the 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 electronically serve Defendant Perez with the 20 information that Plaintiff provided. However, the Marshal was informed by the Litigation 21 Coordinator at Kern Valley State Prison that there was not enough information to identify and 22 locate Defendant Perez for service of process. If Plaintiff is unable to provide the Marshal with 23 the necessary information to identify and locate this defendant, Defendant Perez shall be 24 dismissed from this action, without prejudice. 25 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 26 why Defendant Perez should not be dismissed from the action at this time. Plaintiff may respond 27 to this order by providing additional information that will assist the Marshal in identifying 28 Defendant Perez for service of process. 1 Based on the foregoing, it is HEREBY ORDERED that: 2 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 3 why Defendant J. Perez should not be dismissed from this action; and 4 2. The failure to respond to this order or the failure to show cause will result in the 5 dismissal of Defendant Perez from this action due to Plaintiff’s failure to serve 6 process pursuant to Federal Rule of Civil Procedure 4(m). 7 IT IS SO ORDERED. 8 9 Dated: December 28, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28