(PC) McRae v. Dikran ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL SCOTT McRAE, 1:16-cv-01066-NONE-GSA-PC 12 Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE WHY DEFENDANT NGUYEN 13 vs. SHOULD NOT BE DISMISSED FOR PLAINTIFF’S FAILURE TO EFFECT 14 BAIRAMIAN DIKRAN, et al., SERVICE (ECF Nos. 47, 90.) 15 Defendants. THIRTY DAY DEADLINE 16 17 18 19 20 21 22 I. RELEVANT PROCEDURAL HISTORY 23 Michael Scott McRae (“Plaintiff”) is a former federal prisoner proceeding pro se and in 24 forma pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 25 U.S. 388 (1971). This case now proceeds with Plaintiff’s Second Amended Complaint filed on 26 March 9, 2018, against defendants Dr. Dikran Bairamian, Dr. Kevin Cuong Nguyen, and Dr. 27 David Betz (collectively, “Defendants”), for inadequate medical care under the Eighth 28 Amendment and state law claims for medical malpractice and medical battery. (ECF No. 14.) 1 On September 19, 2019, the court issued an order directing the United States Marshal 2 (“Marshal”) to serve process upon defendants Bairamian, Nguyen, and Betz. (ECF No. 30.) On 3 April 17, 2020, the Marshal filed a return of service unexecuted as to defendant Nguyen 4 indicating that the Marshal was unable to locate defendant Nguyen for service of process at the 5 address given: Memorial Medical Center, 1700 Coffee Road, Modesto, California 95355. (ECF 6 No. 47.) The Marshal stated that defendant Nguyen is no longer employed at Memorial Medical 7 Center and there was no forwarding address. (Id.) 8 On April 21, 2020, the court issued an order directing the Marshal to serve process upon 9 defendant Nguyen at an alternate address given by Plaintiff: 1604 Ford Avenue, Modesto, 10 California 95355. (ECF No. 48.) On December 17, 2020, the Marshal filed a return of service 11 unexecuted as to defendant Nguyen indicating that the Marshal was unable to locate defendant 12 Nguyen for service of process at the 1604 Ford Avenue address. (ECF No. 90.) The Marshal 13 stated that their mail was returned by the United States Postal Service due to insufficient address, 14 and no alternate address was provided. (Id.) 15 II. SERVICE BY UNITED STATES MARSHAL 16 Pursuant to Rule 4(m), 17 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 action 18 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 19 extend the time for service for an appropriate period. 20 Fed. R. Civ. P. 4(m). 21 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 22 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “[A]n incarcerated 23 pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service 24 of the summons and complaint and . . . should not be penalized by having his action dismissed 25 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his 26 duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 27 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 28 (1995). “So long as the prisoner has furnished the information necessary to identify the 1 defendant, the marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker, 14 2 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, 3 where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to 4 effect service of the summons and complaint, the Court’s sua sponte dismissal of the unserved 5 defendants is appropriate. Walker, 14 F.3d at 1421-22. 6 Pursuant to Rule 4(m), the Court will provide Plaintiff with an opportunity to show cause 7 why defendant Nguyen should not be dismissed from this action for failure to serve process. 8 Plaintiff has not provided sufficient information to identify and locate defendant Nguyen for 9 service of process. If Plaintiff is unable to provide the Marshal with additional information, 10 defendant Nguyen shall be dismissed from this action. 11 III. CONCLUSION 12 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 13 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show 14 cause why defendant Nguyen should not be dismissed from this action pursuant 15 to Rule 4(m); and 16 2. Plaintiff’s failure to respond to this order may result in the dismissal of defendant 17 Nguyen or dismissal of this action in its entirety. 18 IT IS SO ORDERED. 19 20 Dated: January 15, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28