(PC) Steward v. Igbinosa ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DONNY STEWARD, Case No. 1:18-cv-00551-AWI-BAM (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT NELSON SHOULD NOT BE 13 v. DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT 14 IGBINOSA, et al., INFORMATION TO EFFECTUATE SERVICE 15 Defendants. (ECF No. 32) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff Donny Steward (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 20 Plaintiff’s first amended complaint against Defendants Igbinosa, Faria, Nelson, Lewis, 21 Brightwell, Cerda, and Hill for violations of the Eighth Amendment. 22 II. Service by the United States Marshal 23 On May 20, 2021, the Court issued an order directing service on Defendants Igbinosa, 24 Faria, Nelson, Lewis, Brightwell, Cerda, and Hill in this case under the Court’s E-Service pilot 25 program for civil rights cases for the Eastern District of California. (ECF No. 32.) The order 26 included the following information regarding Defendant Nelson: “Licensed Vocational Nurse 27 Nelson; CSATF; on or about September 14, 15, 16, 21, and 22 of 2014.” (Id. at 2.) After 28 Defendant Nelson could not be electronically served, service documents were forwarded to the 1 United States Marshals Service for personal service on Defendant Nelson. 2 On July 8, 2021, the United States Marshals Service filed a return of service unexecuted 3 as to Defendant Nelson. (ECF No. 37.) 4 Federal Rule of Civil Procedure 4(m) provides as follows: 5 If a defendant is not served within 120 days after the complaint is filed, the 6 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 7 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. 8 9 Fed. R. Civ. P. 4(m). 10 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 11 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 12 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 13 summons and complaint, and . . . should not be penalized by having his or her action dismissed 14 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 15 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 16 long as the prisoner has furnished the information necessary to identify the defendant, the 17 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 18 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 19 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 20 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 21 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 22 Here, the U.S. Marshal attempted to electronically and personally serve Defendant Nelson 23 with the information that Plaintiff provided. However, the Marshal was informed by the 24 Litigation Coordinator at CSATF that Defendant Janet Nelson resigned in May 2017 and returned 25 to Utah, and no address or phone number is known. If Plaintiff is unable to provide the Marshal 26 with the necessary information to identify and locate this defendant, Defendant Nelson shall be 27 dismissed from this action, without prejudice. 28 /// 1 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 2 why Defendant Nelson should not be dismissed from the action at this time. Plaintiff may 3 respond to this order by providing additional information that will assist the Marshal in 4 identifying Defendant Nelson for service of process. 5 III. Conclusion and Order 6 Based on the foregoing, it is HEREBY ORDERED that: 7 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 8 why Defendant Nelson should not be dismissed from this action; and 9 2. The failure to respond to this order or the failure to show cause will result in the 10 dismissal of Defendant Nelson from this action due to Plaintiff’s failure to serve 11 process pursuant to Federal Rule of Civil Procedure 4(m). 12 IT IS SO ORDERED. 13 14 Dated: July 12, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28