(PC) Harris v. Borquez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEVONTE B. HARRIS, Case No. 1:23-cv-00046-ADA-BAM (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANTS BORQUEZ AND QUEREDO 13 v. SHOULD NOT BE DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE 14 BORQUEZ, et al., SUFFICIENT INFORMATION TO EFFECTUATE SERVICE 15 Defendants. (ECF No. 14) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff Devonte B. Harris (“Plaintiff”) is a state prisoner proceeding pro se in this civil 19 rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants Borquez and 20 Queredo for deliberate fabrication of evidence in violation of the Fourteenth Amendment. 21 On March 28, 2023, the Court issued an order directing service on Defendants under the 22 Court’s E-Service pilot program for civil rights cases for the Eastern District of California. (ECF 23 No. 14.) The order included the following information regarding Defendant Borquez: “S. M. 24 Borquez, Certified Nurse Assistant; California State Prison – Corcoran, Facility 4A1L, Cell 8; on 25 or about April 7, 2018, approximately 7:30 a.m.” and the following information regarding 26 Defendant Queredo: “P. Queredo, Certified Nurse Assistant; California State Prison – Corcoran, 27 Facility 4A1L, Cell 8; on or about April 7, 2018, approximately 7:30 a.m.” (Id. at 2.) On May 28 30, 2023, the Court received information that Defendants Borquez and Queredo could not be 1 identified. 2 Federal Rule of Civil Procedure 4(m) provides as follows: 3 If a defendant is not served within 120 days after the complaint is filed, the 4 court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made 5 within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 6 7 Fed. R. Civ. P. 4(m). 8 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 9 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 10 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 11 summons and complaint, and . . . should not be penalized by having his or her action dismissed 12 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 13 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 14 long as the prisoner has furnished the information necessary to identify the defendant, the 15 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 16 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 17 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 18 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 19 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 20 Here, the U.S. Marshal attempted to electronically serve Defendants Borquez and 21 Queredo with the information that Plaintiff provided. However, the Marshal was informed that 22 there was not enough information to identify Defendants Borquez and Queredo for service of 23 process. If Plaintiff is unable to provide the Marshal with the necessary information to identify 24 and locate these defendants, Defendants Borquez and Queredo shall be dismissed from this 25 action, without prejudice. 26 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 27 why Defendants Borquez and Queredo should not be dismissed from the action at this time. 28 Plaintiff may respond to this order by providing additional information that will assist the 1 Marshal in identifying Defendants Borquez and Queredo for service of process. 2 Based on the foregoing, it is HEREBY ORDERED that: 3 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 4 why Defendants Borquez and Queredo should not be dismissed from this action; and 5 2. The failure to respond to this order or the failure to show cause will result in the 6 dismissal of any unidentified defendant from this action, or dismissal of the entire 7 action, due to Plaintiff’s failure to serve process pursuant to Federal Rule of Civil 8 Procedure 4(m). 9 IT IS SO ORDERED. 10 11 Dated: June 1, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28