(PC) Felix v. Clendenin ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT EMERSON FELIX, Case No. 1:19-cv-01784-AWI-BAM (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT ZELT SHOULD NOT BE 13 v. DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT 14 CLENDENIN, et al., INFORMATION TO EFFECTUATE SERVICE 15 Defendants. (ECF No. 27) 16 THIRTY (30) DAY DEADLINE 17 18 I. Introduction 19 Plaintiff Scott Emerson Felix (“Plaintiff”) is a civil detainee proceeding pro se in this civil 20 rights action under 42 U.S.C. § 1983. Individuals detained pursuant to California Welfare and 21 Institution Code § 6600 et seq. are civil detainees and are not prisoners within the meaning of the 22 Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000). 23 As Plaintiff is a civil detainee and has paid the filing fee, he is not a prisoner or 24 proceeding in forma pauperis, and therefore the Court ordered the complaint to be served without 25 screening. (ECF No. 13.) This action therefore proceeds on Plaintiff’s complaint, filed 26 December 23, 2019, (ECF No. 1), against Defendants California Department of State Hospitals, 27 Department of State Hospitals – Coalinga, Stephanie Clendenin, Brandon Price, Francis Hicks, 28 and Matthew Zelt. 1 II. Service by the United States Marshal 2 On September 28, 2021, the Court issued an order directing the United States Marshal to 3 initiate service of process in this action upon all defendants. (ECF No. 24.) Waivers of service 4 were returned executed for Defendants Clendenin, Hicks, Price, California Department of State 5 Hospitals, and Department of State Hospitals – Coalinga. (ECF Nos. 26, 31.) These defendants 6 also filed a motion to dismiss on November 29, 2021. (ECF Nos. 28–30.) 7 On November 15, 2021, the United States Marshal filed a return of service unexecuted as 8 to Defendant Matthew Zelt. (ECF No. 27.) 9 Federal Rule of Civil Procedure 4(m) provides as follows: 10 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 11 action without prejudice against that defendant or order that service be made 12 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. 13 14 Fed. R. Civ. P. 4(m). 15 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 16 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 17 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 18 summons and complaint, and . . . should not be penalized by having his or her action dismissed 19 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 20 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 21 long as the prisoner has furnished the information necessary to identify the defendant, the 22 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 23 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 24 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 25 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 26 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 27 Here, the U.S. Marshal attempted to serve Defendant Zelt with the information that 28 Plaintiff provided. However, the Marshal was informed that Defendant Zelt is no longer 1 employed by the Department of State Hospitals, no forwarding address was provided, and they 2 are unable to locate Defendant Zelt. (ECF No. 27.) Plaintiff therefore has not provided sufficient 3 information to identify and locate Defendant Zelt for service of process. If Plaintiff is unable to 4 provide the Marshal with the necessary information to identify and locate this defendant, 5 Defendant Zelt shall be dismissed from this action, without prejudice. Pursuant to Rule 4(m), the 6 Court will provide Plaintiff with the opportunity to show cause why Defendant Zelt should not be 7 dismissed from the action at this time. 8 III. Conclusion and Order 9 Based on the foregoing, it is HEREBY ORDERED that: 10 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show 11 cause why Defendant Zelt should not be dismissed from this action; and 12 2. The failure to respond to this order or the failure to show cause will result in the 13 dismissal of Defendant Zelt from this action. 14 IT IS SO ORDERED. 15 16 Dated: December 8, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28