(PC) Uriel Garcia v. Powell ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 URIEL GARCIA, Case No.: 1:19-cv-01631-ADA-CDB (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT SWAFFORD SHOULD NOT 13 v. BE DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT 14 POWELL, et al., INFORMATION TO EFFECTUATE SERVICE 15 Defendants. (Doc. 27) 16 21-DAY DEADLINE 17 18 Plaintiff Uriel Garcia is proceeding pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants Powell, Hurtado, 20 Ugwueze, and Swafford for deliberate indifference to serious medical needs in violation of the 21 Eighth Amendment. 22 I. RELEVANT PROCEDURAL BACKGROUND 23 On April 13, 2023, the Court issued an order directing service on Defendants under the 24 Court’s E-Service pilot program for civil rights cases for the Eastern District of California. (Doc. 25 27.) The order included the following information regarding Defendant Swafford: “Albert R. 26 Swafford, allegedly employed as an orthopedic surgeon at the Substance Abuse Treatment 27 Facility in Corcoran in 2019.” (Id. at 2.) On May 25, 2023, the Court received a notice of intent 1 physician at or for the Substance Abuse Treatment Facility in Corcoran California. (Doc. 30.)1 2 On June 7, 2023, the U.S. Marshals advised service could not be effected on Defendant Swafford 3 at 2731 H Street, Suite A, in Bakersfield, California2 because that office was vacant, and no 4 alternate address was available. (Doc. 31.) 5 II. DISCUSSION AND ORDER 6 Federal Rule of Civil Procedure 4(m) provides as follows: 7 If a defendant is not served within 90 days after the complaint is filed, the court— 8 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 within a 9 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 10 11 Fed. R. Civ. P. 4(m). 12 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 13 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 14 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 15 summons and complaint, and . . . should not be penalized by having his or her action dismissed 16 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 17 duties required of each of them . . ..” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 18 long as the prisoner has furnished the information necessary to identify the defendant, the 19 marshal’s failure to effect service is ‘automatically good cause . . ..’” Walker v. Sumner, 14 F.3d 20 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 21 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient 22 information to effect service of the summons and complaint, the Court’s sua sponte dismissal of 23 the unserved defendant is appropriate. Walker, 14 F.3d at 1421-22. 24 Here, the U.S. Marshal has attempted to serve Defendant Swafford. However, the waiver 25 and service packet mailed to Defendant Swafford were returned, and the office located at the 26 1 Defendants Powell, Hurtado and Ugwueze filed notice of intent to waive personal service that same date. 27 2 This address is the address of record for Albert R. Swafford on the California Medical Board’s website. See https://search.dca.ca.gov/details/8002/C/37020/e1a12c22cdb74a4fedb17c5b0c7a485b, last accessed een eee een nnn nn ne EI I IEE EE 1 | relevant address is vacant. If Plaintiff is unable to provide the U.S. Marshal with the necessary 2 | information to locate this defendant, Defendant Swafford shall be dismissed from this action, 3 | without prejudice. 4 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 5 | why Defendant Swafford should not be dismissed from the action at this time. Plaintiff may 6 | respond to this order by providing additional information that will assist the U.S. Marshal in 7 | locating Defendant Swafford for service of process.° 8 Based on the foregoing, IT IS HEREBY ORDERED that: 9 1. Within twenty-one (21) days from the date of service of this order, Plaintiff shall show 10 cause why Defendant Swafford should not be dismissed from this action; and 11 2. The failure to respond to this order or the failure to show cause will result in the 12 dismissal of any unidentified defendant from this action, due to Plaintiffs failure to 13 serve process pursuant to Federal Rule of Civil Procedure 4(m). 14 | IT IS SO ORDERED. ' | Dated: _ June 20, 2023 | br Pr 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 3 The medical facility located at 300 Old River Rd., Suite 150, Bakersfield, California 93311 is also not a 28 current address for Defendant Swafford. See https://www.dignityhealth.org/ourdoctors/t/albert-r.-swafford, last accessed June 16, 2023 (reflecting the address of 2731 H Street, Suite A, Bakersfield, California).