(PC) Rood v. Department of Corrections ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COLTON JAMES ROOD, Case No. 1:19-cv-01517-JLT-HBK (PC) 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW CAUSE UNDER FEDERAL RULE OF CIVIL 13 v. PROCEDURE 4(M) 14 RON CARVER, PHILIPS, NAPOR 14-DAY DEADLINE KEOVILAY, SCOTT FRAUENHEIM 15 Defendants. 16 17 18 This matter comes before the Court upon periodic review of the file. Plaintiff who is 19 proceeding pro se and in forma pauperis, filed his First Amended Complaint (“FAC”) on 20 February 21, 2020. (Doc. Nos. 15, 18). The Court determined the FAC stated a claim for a 21 violation of Plaintiff’s Eight Amendment rights for a failure to protect or intervene against 22 Defendants John Doe, Philips, and Jane Doe; a medical deliberate indifference claim against 23 Defendant Philips; and a failure to train claim against STRH Administrator/Warden. Service was 24 directed in accordance with the court’s E-Service pilot program for civil rights cases for the 25 Eastern District of California. (Doc. No. 34). Through service of the complaint, the California 26 Department of Corrections and Rehabilitation (“CDCR”) filed a notice identifying: John Doe as 27 Ron Carver; Jane Doe as Napor Keovilay; STRH Administrator/Warden as Scott Frauenheim; 28 1 and advising that CDCR. (Doc. Nos. 36, 37). CDCR further advised that they could not identify 2 an individual by the name “Philips,” could not waive service on behalf of Carver and Frauenheim 3 because neither is currently employed by CDCR, but agreed to waive service on behalf of Napor 4 Keovilay. (Id.). CDCR provided the last known telephone numbers for Carver and Frauenheim. 5 (Id.). Waivers were returned for Napor Keovilay and Scott Frauenheim on July 11, 2022. (Doc. 6 Nos. 39, 40). From June 14, 2022 to July 14, 2022 the United States Marshals Service (“USM”) 7 made multiple attempts to effectuate service on Mr. Carver by telephoning his last known phone 8 number and trying to obtain his current address. (Doc. No. 41). However, the USM has not been 9 able to effect service on Mr. Carver. (Id.). Similarly, from June 16, 2022 to July 14, 2022 the 10 USM made multiple attempts to identify Defendant Philips to effectuate service. (Id.). However, 11 the USM has not been able to identify a “Philips.” (Id.). 12 Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant within 90 13 days of filing the complaint. Fed. R. Civ. P. 4(m). The time may be extended for good cause 14 shown. Id. If a defendant is not served within the requisite time period, after notice to plaintiff, 15 the court must dismiss the action without prejudice, or order that service be made within a certain 16 time period. Id. (emphasis added). 17 “Pro se litigants must follow the same rules of procedure that govern other litigants.” 18 Thomas v. Scott, 2015 U.S. Dist. LEXIS 96365, *6-*7 (C.D. Cal. Jun. 4, 2016)(findings and 19 recommendations to dismiss the prisoner plaintiff’s case for a failure to effect service adopted by 20 Thomas v. Scott, 2015 U.S. Dist. LEXIS 96387, 2015 WL 4507255 (C.D. Cal. Jul. 22, 2015)) 21 (quoting King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)(overruled in part by Lacy v. Maricopa 22 County, 693 F.3d 896 (9th Cir. 2021)) (citing Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 23 1995)(the failure of a pro-se litigant to follow the procedural rules justified the dismissal of the 24 pro-se litigant’s civil rights action). While prisoners may rely on the U.S. Marshal’s Office to 25 serve a defendant, a district court may dismiss a prisoner’s civil rights complaint for a failure to 26 effect service when the prisoner plaintiff fails to provide the U.S. Marshals with sufficient 27 information to serve a defendant. Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). The 28 rules of civil procedure are “based on the assumption that litigation is normally conducted by 1 | lawyers[;]” however, the rules should not be interpreted in a manner that excuses “mistakes by 2 | those who proceed without counsel.” McNeil v. United States, 508 U.S. 106, 113 (1993). 3 Plaintiff's Rule 4(m) period did not commence running until the Court authorized service 4 | of process and the Clerk of Court gave the USM the service-related documents provided by 5 | Plaintiff. See Thomas, 2015 U.S. Dist. LEXIS 96365 at *6. Plaintiff's Rule 4(m) period is 6 | approaching expiration. As of the date of this order, Plaintiff has not provided the USM with 7 | sufficient information to effect service on Defendants Philips and Ron Carver. (See generally 8 || docket). 9 Plaintiff must provide an updated address or contact information for Defendants Philips 10 | and Ron Carver before his Rule 4(m) period expires. Alternatively, if he wishes, Plaintiff may 11 voluntarily dismiss Defendants Philips and Ron Carver pursuant to Fed. Rule Civ. P. 41. If 12 | Defendant cannot effectuate service within his Rule 4(m) period, then he will need to show good 13 | cause why Defendants Philips and Ron Carver should not be dismissed under Rule 4(m). 14 Accordingly, it is ORDERED: 15 1. Within fourteen (14) days of receipt of this this Order, Plaintiff shall provide an 16 || updated address or contact information for Defendants Philips and Ron Carver. Alternatively 17 | Plaintiff may file a notice of voluntary dismissal as to Defendants Philips and Ron Carver. 18 2. The Clerk shall substitute Ron carver in place of John Doe, Napor Keovilay in 19 || place of Jane Doe, and Scott Frauenheim in place of STRH Administrator/Warden. 20 21 | Dated: _ August 11, 2022 Mihaw. Wh. foareh fackte HELENA M. BARCH-KUCHTA 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28