(PC) Puckett v. Kelso ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DURRELL ANTHONY PUCKETT, Case No. 1:23-cv-00054-HBK (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT GUTIERREZ SHOULD NOT 13 v. BE DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT 14 J. BARRIOS, FNU HERNANDEZ, FNU INFORMATION TO EFFECTUATE WHITE, and FNU GUTIERREZ, SERVICE 15 Defendants. (Doc. No. 18) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff Durrell Anthony Puckett is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against 20 Defendants J. Barrios, FNU Hernandez, FNU White, and FNU Gutierrez for violation of 21 Plaintiff’s Eighth Amendment right to be free from cruel and unusual punishment. 22 On February 17, 2023, the Court issued an order directing service on Defendants under 23 the Court’s E-Service pilot program for civil rights cases for the Eastern District of California. 24 (Doc. No. 18). On May 4, 2023, the Court received information that Defendants White, Barrios, 25 and Hernandez were successfully identified as employees of California State Prison – Corcoran, 26 but Defendant Gutierrez could not be identified. (Doc. Nos. 23, 24). On May 5, 2023, the United 27 States Marshal returned the summons on Defendant Gutierrez as unexecuted. (Doc. No. 25). The 28 U.S. Marshal was unable to identify Defendant Gutierrez for service of process. (Id.). If Plaintiff 1 is unable to provide the Marshal with the necessary information to identify and locate this 2 defendant, Defendant Gutierrez shall be dismissed from this action, without prejudice. 3 Specifically, Federal Rule of Civil Procedure 4(m) provides as follows: 4 If a defendant is not served within 120 days after the complaint is filed, the 5 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 6 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. 7 8 Fed. R. Civ. P. 4(m). 9 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 10 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 11 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 12 summons and complaint, and . . . should not be penalized by having his or her action dismissed 13 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 14 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 15 long as the prisoner has furnished the information necessary to identify the defendant, the 16 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 17 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 18 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 19 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 20 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 21 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 22 why Defendant Gutierrez should not be dismissed from the action at this time. Plaintiff may 23 respond to this order by providing additional information that will assist the Marshal in 24 identifying Defendant Gutierrez for service of process. For example, Plaintiff may provide an 25 approximate date for the incident at issue, a building number or facility where the incident took 26 place, or other identifying physical features for Defendant Gutierrez. 27 //// 28 1 Accordingly, it is ORDERED: 2 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 3 why Defendant Gutierrez should not be dismissed from this action; and 4 2. The failure to respond to this order or the failure to show cause will result in the 5 dismissal of any unidentified defendant from this action, due to Plaintiffs failure to 6 serve process pursuant to Federal Rule of Civil Procedure 4(m). 7 Dated: _ June 8, 2023 Mihaw. Th fareh Hack 9 HELENA M. BARCH-KUCHTA 0 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28