(PC) Gonzales v. Gonzales ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL GONZALES, Case No. 1:19-cv-00459-NONE-SAB (PC) 12 Plaintiff, ORDER REQUIRING PLAINTIFF TO PROVIDE FURTHER INFORMATION 13 v. REGARDING DEFENDANTS GONZALES AND CENA IN ORDER TO EFFECTUATE 14 GONZALES, et al., SERVICE OF SUMMONS AND COMPLAINT 15 Defendants. (ECF No. 24) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff Michael Gonzales 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 October 30, 2019, the Court found that service of Plaintiff’s complaint was appropriate 21 as to Defendants Godinez, Cena, Gonzales, Harry, Villegas, Serato (or Serrato), Gonzalez, 22 Shoemaker, Perez, Willis, Arron, Torres, and Harmon for providing Plaintiff with food tainted 23 with involuntary antipsychotic medication without a Keyhea order in violation of the Due Process 24 Clause of the Fourteenth Amendment. (ECF No. 13.) 25 On January 2, 2020, pursuant to the E-Service pilot program for civil rights cases in the 26 Eastern District of California, the California Department of Corrections and Rehabilitation 27 returned a notice of intent to not waive personal service on Defendants Cena and Gonzales 28 because there was not enough information provided and no such employee could be found. 1 Therefore, service was forwarded to the United States Marshals Service. 2 On February 18, 2020, the United States Marshal returned the USM-285 forms for 3 Defendants Cena and Gonzales as unexecuted with a notation that, per the litigation coordinator 4 at Kern Valley State Prison, Defendants Cena and Gonzales cannot be identified without more 5 information. (ECF No. 24.) 6 Rule 4(m) of the Federal Rules of Civil Procedure provides: 7 If a defendant is not served within 90 days after the complaint is filed, the court - 8 on motion or on its own after notice to the plaintiff - must dismiss the action 9 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 10 extend the time for service for an appropriate period. 11 12 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 13 Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 14 “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. 15 Marshal for service of the summons and complaint and [he] should not be penalized by having his 16 action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed 17 to perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal 18 quotations and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 19 (1995). “So long as the prisoner has furnished the information necessary to identify the 20 defendant, the marshal’s failure to effect service is automatically good cause. . . .” Id. (internal 21 quotations and citation omitted). However, where a pro se plaintiff fails to provide the Marshal 22 with accurate and sufficient information to effect service of the summons and complaint, the 23 Court’s sua sponte dismissal of the unserved defendants is appropriate. Id. at 1421-22. 24 At this time, the United States Marshal cannot serve Defendants Cena and Gonzales 25 without further identifying information. Therefore, the Court finds that is appropriate to require 26 Plaintiff to provide the Court with further information sufficient to identify Defendants Cena and 27 Gonzales for service of process. Accordingly, it is HEREBY ORDERED that, within thirty (30) 28 days from the date of service of this order, Plaintiff shall file a written response providing the 1 | Court with further information regarding Defendants Cena’s and Gonzales’s identities so that the 2 | U.S. Marshal can effect service of the summons and complaint on Defendants Cena and 3 | Gonzales. Plaintiffs failure to respond to this order will result in a recommendation to a District 4 | Judge to dismiss Defendants Cena and Gonzales from this action. 5 6 7 IT IS SO ORDERED. DAA (e_ g | Dated: _March 3, 2020_ ef 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28