(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, HERNANDEZ, WHITE, and INFORMATION TO EFFECTUATE GUTIERREZ, SERVICE 15 Defendants. THIRTY (30) DAY DEADLINE 16 17 Plaintiff Durrell Anthony Puckett (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds 19 against Defendants J. Barrios, Hernandez, White and Gutierrez for unconstitutional conditions of 20 confinement in violation of the Eighth Amendment. 21 On June 26, 2023, the Court issued a second order directing service on Defendant 22 Gutierrez via the Court’s E-Service pilot program for civil rights cases for the Eastern District of 23 California. (Doc. No. 35). The order included the following information regarding Defendant 24 Gutierrez: “Correctional Officer at CSP-Corcoran, who worked 3rd watch (5) days a week on 25 3A03 2021 Jan-Feb. He was Officer Dustin White’s partner. (Id. at 2). On August 8, 2023, the 26 Court received information from CDCR that Defendant Gutierrez could not be identified. (Doc. 27 No. 39). On October 2, 2023, the Court received information from the U.S. Marshal that 28 Defendant Gutierrez could not be identified. (Doc. No. 40). 1 Federal Rule of Civil Procedure 4(m) provides as follows: 2 If a defendant is not served within 120 days after the complaint is filed, the 3 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 4 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. 5 6 Fed. R. Civ. P. 4(m). 7 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 8 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 9 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 10 summons and complaint, and . . . should not be penalized by having his or her action dismissed 11 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 12 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 13 long as the prisoner has furnished the information necessary to identify the defendant, the 14 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 15 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 16 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 17 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 18 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 19 Here, the U.S. Marshal attempted to electronically serve Defendant Gutierrez with the 20 information that Plaintiff provided. However, the Marshal was informed that there was not 21 enough information to identify Defendant Gutierrez for service of process. If Plaintiff is unable 22 to provide the Marshal with the necessary information to identify and locate this defendant, 23 Defendant Gutierrez shall be dismissed from this action, without prejudice. 24 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 25 why Defendant Gutierrez should not be dismissed without prejudice from the action at this time. 26 ACCORDINGLY, it is ORDERED: 27 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 28 why Defendant Gutierrez should not be dismissed from this action; and 1 2. The failure to respond to this order or the failure to show cause will result in the dismissal 2 of any unidentified defendant from this action, due to Plaintiff's failure to serve process 3 pursuant to Federal Rule of Civil Procedure 4(m). 4 > | Dated: _ October 4, 2023 Mile. □□□ foareA Zacks 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28