(PC) Coleman v. Sosa ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ADAM W. COLEMAN, Case No. 1:21-cv-00825-EPG (PC) 11 Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE WHY THE COURT SHOULD NOT 12 v. ISSUE FINDINGS AND RECOMMENDATIONS, 13 A. SOSA, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITHOUT PREJUDICE, 14 Defendant. PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(M) 15 TWENTY-ONE DAY DEADLINE 16 17 Adam Coleman (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 18 in this civil rights action filed pursuant to 42 U.S.C. § 1983. 19 This case is proceeding on Plaintiff’s Eighth Amendment sexual assault claim against 20 defendant Sosa. (ECF No. 5). 21 On June 1, 2021, the Court issued an order directing service on defendant Sosa under 22 the Court’s E-Service pilot program for civil rights cases for the Eastern District of California. 23 (ECF No. 6). The order included the following information regarding defendant Sosa: “A. 24 Sosa, who was employed at Golden State Modified Community Correctional Facility as a 25 correctional officer on July 13, 2019.” (Id. at 1). 26 Defendant Sosa could not be electronically served because defendant A. Sosa could not 27 be identified. (ECF No. 13). Service documents were forwarded to the United States Marshals 28 Service (“USMS”) for personal service on defendant Sosa. 1 On August 3, 2021, the USMS filed a return of service unexecuted. (ECF No. 14). 2 According to the USMS, the USMS reached out to the litigation coordinator at Golden State 3 Modified Community Correctional Facility. The USMS was informed that Sosa was 4 contracted by the County of Kern and was not a California Department of Corrections and 5 Rehabilitation employee. The USMS then reached out to Kern County and was informed that 6 an A. Sosa works for Kern County, but A. Sosa is a male (the defendant in this case is a 7 female). Accordingly, the USMS indicated that it is unable to identify or locate the correct A. 8 Sosa. 9 Pursuant to Federal Rule of Civil Procedure 4(m), 10 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 dismiss the 11 action 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 12 court must extend the time for service for an appropriate period. 13 Fed. R. Civ. P. 4(m). 14 In cases involving a plaintiff proceeding in forma pauperis, the USMS, upon order of 15 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “‘[A]n 16 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 17 for service of the summons and complaint and ... should not be penalized by having his action 18 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 19 perform his duties….’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett 20 v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other 21 grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has furnished the 22 information necessary to identify the defendant, the marshal’s failure to effect service is 23 ‘automatically good cause….’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 24 F.2d 598, 603 (7th Cir.1990)). However, where a plaintiff proceeding in forma pauperis fails 25 to provide the Marshals Service with accurate and sufficient information to effect service of the 26 summons and complaint, dismissal of the unserved defendant is appropriate. Walker, 14 F.3d 27 at 1421-22. 28 As discussed above, the USMS was unable to locate and serve defendant Sosa with the een ee OE I OS IIE IEEE OIE IIE EO 1 information provided by Plaintiff. 2 Accordingly, pursuant to Rule 4(m), the Court will provide Plaintiff with an opportunity 3 show cause why the Court should not issue findings and recommendations to a district judge, 4 recommending that this action be dismissed because of Plaintiff's failure to provide the USMS 5 || with accurate and sufficient information to effect service of the summons and complaint on 6 || defendant Sosa. The Court will vacate this order to show cause if Plaintiff is able to provide 7 || the Court with additional relevant information or if Plaintiff requests the issuance of a third 8 || party subpoena so that he can attempt to identify defendant Sosa. 9 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 10 1. Within twenty-one (21) days from the date of service of this order, Plaintiff shall 11 show cause why the Court should not issue findings and recommendations to a 12 district judge, recommending that this action be dismissed, without prejudice, 13 pursuant to Federal Rule of Civil Procedure 4(m); and 14 2. Failure to respond to this order may result in this action being dismissed, without 15 prejudice. 16 4 IT IS SO ORDERED. |! Dated: _ August 5, 2021 [sf ey 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28