(PC) Steele v. CDCR ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN STEELE, Case No. 1:19-cv-00471-AWI-JLT (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR 13 v. FAILURE TO EFFECT SERVICE 14 CDCR, et al., 21-DAY DEADLINE 15 Defendants. 16 17 Plaintiff Justin Steele is a state prisoner proceeding pro se and in forma pauperis in this 18 action. On August 1, 2021, the Court issued an order directing service of process on Defendants 19 Gutierrez and Herrera. (Doc. 29.) On August 12, 2021, the U.S. Marshals Service filed a return of 20 service unexecuted as to the defendants. (Doc. 32.) 21 Federal Rule of Civil Procedure 4 provides: If a defendant is not served within 90 days after the complaint is filed, the court— 22 on motion or on its own after notice to the plaintiff—must dismiss the action 23 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 24 extend the time for service for an appropriate period. 25 In cases involving plaintiffs proceeding pro se and in forma pauperis, the Court routinely 26 orders the U.S. Marshals Service to serve the summonses and complaints on the defendants. Fed. 27 R. Civ. P. 4(c)(3). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to 28 rely on the U.S. Marshal for service of the summons and complaint, and . . . should not be 1 penalized by having his or her action dismissed for failure to effect service where the U.S. 2 Marshal or the court clerk has failed to perform the duties required.” Puett v. Blandford, 912 F.2d 3 270, 275 (9th Cir. 1990). “So long as the prisoner has furnished the information necessary to 4 identify the defendant, the marshal’s failure to effect service is automatically good cause.” Walker 5 v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotation marks and citation omitted), 6 abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 (1995). However, where a 7 pro se plaintiff fails to provide the U.S. Marshal with sufficient information to effect service on a 8 defendant, the Court may dismiss that defendant. Id. at 1421-22. 9 The California Department of Corrections and Rehabilitation attempted service on 10 Defendants through the Court’s e-service pilot program. (See Docs. 29, 31.) However, the CDCR 11 Office of Legal Affairs indicated that it could not identify the defendants with the information 12 provided. (Doc. 31.) Thus, Defendants could not be served via the e-service program. The U.S. 13 Marshal Service then attempted service on Defendants, but it too could not identify them with the 14 given information. (Doc. 32.) According to the Marshal, the litigation coordinator at Wasco State 15 Prison could not identify the defendants given (1) the commonness of the names Gutierrez and 16 Herrera, (2) the fact that no first names or first-name initials were provided, and (3) that no 17 employees with the provided names were assigned to transport Plaintiff on the date in question. 18 (Id.) 19 Plaintiff has therefore provided insufficient information to identify Defendants for service 20 of process. If Plaintiff is unable to provide the U.S. Marshal with sufficient information to 21 identify the defendants, this action will be dismissed without prejudice. Pursuant to Rule 4(m), 22 the Court will first provide Plaintiff with the opportunity to show cause why this action should 23 not be dismissed at this time. 24 Based on the foregoing, the Court ORDERS Plaintiff, within 21 days of the date of 25 service of this order, to show cause in writing why this action should not be dismissed. Plaintiff 26 may also provide additional identifying information about Defendants. 27 /// 28 /// 1 The failure to respond to this order or the failure to show good cause will result in a 2 recommendation that this action be dismissed for failure to effect service. 3 IT IS SO ORDERED. 4 5 Dated: September 27, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28