(PC) Lugo v. Fisher ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEITH ROBERT LUGO, Case No. 1:19-cv-00039-LJO-SAB (PC) 12 Plaintiff, ORDER REQUIRING PLAINTIFF TO PROVIDE FURTHER INFORMATION 13 v. REGARDING DEFENDANT ANGELINA IN ORDER TO EFFECTUATE SERVICE OF 14 R. FISHER, et al., SUMMONS AND COMPLAINT 15 Defendants. (ECF No. 30) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff Keith Robert Lugo is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action pursuant to 42 U.S.C. § 1983. 20 On September 5, 2019, the Court found that service of Plaintiff’s second amended 21 complaint was appropriate as to Defendants Mayfield, Caitlan, and Angelina for interference with 22 mail in violation of the First Amendment, and service was ordered. (ECF No. 26.) 23 On October 4, 2019, pursuant to the E-Service pilot program for civil rights cases in the 24 Eastern District of California, the California Department of Corrections and Rehabilitation 25 returned a notice of intent to not waive personal service on Defendant Angelina because there was 26 no such employee with this name in the mailroom. Therefore, service was forwarded to the 27 United States Marshals Service. 28 1 On October 7, 2019, the United States Marshal returned the USM-285 form as unexecuted 2 with a notation that no one by the name of Angelina was able to be identified working at Valley 3 State Prison in 2018 and that a last name is needed for a better chance to identify the defendant. 4 (ECF No. 30.) 5 Rule 4(m) of the Federal Rules of Civil Procedure provides: 6 If a defendant is not served within 90 days after the complaint is filed, the court - 7 on motion or on its own after notice to the plaintiff - must dismiss the action 8 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 9 extend the time for service for an appropriate period. 10 11 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 12 Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 13 “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. 14 Marshal for service of the summons and complaint and [he] should not be penalized by having his 15 action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed 16 to perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal 17 quotations and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 18 (1995). “So long as the prisoner has furnished the information necessary to identify the 19 defendant, the marshal’s failure to effect service is automatically good cause. . . .” Id. (internal 20 quotations and citation omitted). However, where a pro se plaintiff fails to provide the Marshal 21 with accurate and sufficient information to effect service of the summons and complaint, the 22 Court’s sua sponte dismissal of the unserved defendants is appropriate. Id. at 1421-22. 23 At this time, the United States Marshal cannot serve Defendant Angelina without further 24 identifying information. Therefore, the Court finds that is appropriate to require Plaintiff to 25 provide the Court with further information sufficient to identify Defendant Angelina for service 26 of process. Accordingly, it is HEREBY ORDERED that, within thirty (30) days from the date of 27 service of this order, Plaintiff shall file a written response providing the Court with further 28 information regarding Defendant Angelina’s identity so that the U.S. Marshal can effect service 1 | of the summons and complaint on Defendant Angelina. Plaintiff's failure to respond to this order 2 | will result in the dismissal of Defendant Angelina from this action. 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ October 11, 2019 ; ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28