(PC) Burpee v. Huff ( 2023 )

1 97 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TODD D. BURPEE, Case No. 1:21-cv-00297-ADA-HBK (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT UNKNOWN 13 v. CORRECTIONAL OFFICER SHOULD NOT BE DISMISSED FROM THIS ACTION FOR 14 HUFF and UNKNOWN FAILURE TO PROVIDE SUFFICIENT CORRECTIONAL OFFICER, INFORMATION TO EFFECTUATE 15 SERVICE Defendants. 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff Todd D. Burpee (“Plaintiff”) 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 Huff and Unknown Correctional Officer for claims alleging violation of Plaintiff’s 21 Fourteenth Amendment Equal Protection rights. 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. 13). On September 13, 2023, the Court received information that Defendant Huff was 25 successfully identified as a former employee of Valley State Prison, but Defendant Unknown 26 Correctional Officer could not be identified. (Doc. Nos. 15, 16). On May 5, 2023, the United 27 States Marshal returned the summons on Defendant Unknown Correctional Officer as 28 unexecuted. (Doc. No. 17). The U.S. Marshal was unable to identify Defendant Unknown 1 Correctional Officer for service of process. (Id.). If Plaintiff is unable to provide the Marshal 2 with the necessary information to identify and locate this defendant, Defendant Unknown 3 Correctional Officer shall be dismissed from this action, without prejudice. 4 Federal Rule of Civil Procedure 4(m) provides as follows: 5 If a defendant is not served within 120 days after the complaint is filed, the 6 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 7 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. 8 9 Fed. R. Civ. P. 4(m). 10 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 11 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 12 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 13 summons and complaint, and . . . should not be penalized by having his or her action dismissed 14 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 15 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 16 long as the prisoner has furnished the information necessary to identify the defendant, the 17 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 18 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 19 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 20 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 21 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 22 Here, the U.S. Marshal attempted to electronically serve Defendant Unknown 23 Correctional Officer with the information that Plaintiff provided. However, the Marshal was 24 informed that there was not enough information to identify Defendant Unknown Correctional 25 Officer for service of process. If Plaintiff is unable to provide the Marshal with the necessary 26 information to identify and locate this defendant, Defendant Unknown Correctional Officer shall 27 be dismissed from this action, without prejudice. 28 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 1 | why Defendant Unknown Correctional Officer should not be dismissed without prejudice from 2 | the action at this time. 3 ACCORDINGLY, it is ORDERED: 4 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 5 why Defendant Unknown Correctional Officer should not be dismissed from this action; 6 and 7 2. The failure to respond to this order or the failure to show cause will result in the 8 dismissal of any unidentified defendant from this action without prejudice, due to 9 Plaintiff’s failure to serve process pursuant to Federal Rule of Civil Procedure 4(m). 10 i Dated: _ November 14, 2023 Gow Zh fareh Zack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28