(PC) Solorio v. Sullivan ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ADRIAN SOLORIO, 1:19-cv-00688-NONE-GSA-PC 12 Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE WHY DEFENDANT SERGEANT 13 vs. GRATOKOSKI SHOULD NOT BE DISMISSED FOR PLAINTIFF’S FAILURE TO EFFECT 14 SULLIVAN, et al., SERVICE (ECF No. 33.) 15 Defendants. THIRTY DAY DEADLINE 16 17 18 19 20 21 22 I. BACKGROUND 23 Adrian Solorio (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 24 with this civil rights action under 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 25 Second Amended Complaint filed on October 8, 2020, against defendants I. Ottsman and V. 26 Chavez on plaintiff’s medical claims under the Eighth Amendment, and against defendants 27 Ottsman, Chavez, Clayton, Gratokoski, and Cardenas for use of excessive force under the Eighth 28 Amendment. (ECF No. 24.) 1 On June 8, 2021, the court issued an order directing service upon defendants Ottsman, 2 Chavez, Clayton, Gratokoski, and Cardenas. (ECF No. 29.) On June 24, 2021, the U.S. Marshal 3 filed a return of service unexecuted as to defendant Gratokoski, indicating that the Marshal was 4 unable to identify defendant Gratokoski for service of process. (ECF No. 33.) 5 II. SERVICE BY UNITED STATES MARSHAL 6 Pursuant to Rule 4(m), 7 If a defendant is not served within 120 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 10 specified time. But if the plaintiff shows good cause for the failure, the court must 11 extend the time for service for an appropriate period. 12 Fed. R. Civ. P. 4(m). 13 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 14 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “[A]n incarcerated 15 pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of 16 the summons and complaint and . . . should not be penalized by having his action dismissed for 17 failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties.” 18 Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 19 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). 20 “So long as the prisoner has furnished the information necessary to identify the defendant, the 21 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker, 14 F.3d at 1422 22 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, where a pro se 23 plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of 24 the summons and complaint, the Court’s sua sponte dismissal of the unserved defendants is 25 appropriate. Walker, 14 F.3d at 1421-22. 26 Background 27 The return of service filed by the Marshal on June 24, 2021, indicates that on June 24, 28 2021, the Marshal reached out to the Litigation Coordinator at California Correctional Institution 1 in Tehachapi, California, to try and identify Sergeant Gratokoski. The Marshal provided alternate 2 spellings of the last name to the Litigation Coordinator and she stated they do not have any staff, 3 past or present, with a name even close. Return process was unexecuted as the Marshal was 4 unable to identify the defendant based on the information provided. (ECF No. 33.) 5 Pursuant to Rule 4(m), the Court will provide Plaintiff with an opportunity to show cause 6 why defendant Sergeant Gratokoski should not be dismissed from this action for failure to serve 7 process. Plaintiff has not provided sufficient information to identify and locate defendant 8 Sergeant Gratokoski for service of process. If Plaintiff is unable to provide the Marshal with 9 additional information, defendant Sergeant Gratokoski shall be dismissed from this action. 10 III. ORDER TO SHOW CAUSE 11 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 12 1. Within thirty (30) days from the date of service of this order, Plaintiff shall file 13 a written response to this order, showing cause why defendant Sergeant 14 Gratokoski should not be dismissed from this action pursuant to Rule 4(m); and 15 2. Plaintiff’s failure to respond to this order may result in the dismissal of defendant 16 Sergeant Gratokoski or dismissal of this action in its entirety. 17 IT IS SO ORDERED. 18 19 Dated: July 8, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28