(PC) Evans v. Diaz ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ARKEEN EVANS, Case No. 1:22-cv-00291-ADA-BAM (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT REED SHOULD NOT BE 13 v. DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT 14 DIAZ, et al., INFORMATION TO EFFECTUATE SERVICE 15 Defendants. (ECF Nos. 18, 27) 16 THIRTY (30) DAY DEADLINE 17 18 I. Background 19 Plaintiff David Arkeen Evans (“Plaintiff”) is a state prisoner proceeding pro se in this 20 civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended 21 complaint against: (1) Defendants E. Diaz and Ramirez for excessive force in violation of the 22 Eighth Amendment for spraying Plaintiff with OC spray; (2) Defendant Reed for excessive force 23 in violation of the Eighth Amendment for ramming Plaintiff with his riot shield and pinning 24 Plaintiff to a desk; (3) Defendants E. Diaz and Ramirez for excessive force in violation of the 25 Eighth Amendment for applying excessively tight ankle restraints and dragging Plaintiff by the 26 chain of the shackles into the hallway; (4) Defendants Martin, E. Diaz, Ramirez, and Marin for 27 excessive force in violation of the Eighth Amendment for beating Plaintiff with batons in the 28 hallway; (5) Defendants A. Aguilar and E. Figueroa for failure to intervene in violation of the 1 Eighth Amendment; (6) Defendant Bradford for deliberate indifference to serious medical needs 2 in violation of the Eighth Amendment for refusing to admit Plaintiff to a suicide crisis bed after 3 Plaintiff swallowed two razor blades with the intent of killing himself; and (8) Defendants 4 Stanley, Arrozola, and Aguilar for unconstitutional conditions of confinement in violation of the 5 Eighth Amendment. 6 Defendants E. Diaz, Martin, Stanley, Ramirez, A. Aguilar, E. Figueroa, Marin, and 7 Arrozola answered the complaint on May 24, 2023.1 (ECF No. 31.) Defendant Reed has not yet 8 been served. (ECF No. 27.) 9 II. Attempt to Serve Defendant Reed 10 On January 20, 2023, the Court issued an order directing service on Defendants under the 11 Court’s E-Service pilot program for civil rights cases for the Eastern District of California. (ECF 12 No. 18.) The order included the following information regarding Defendant Reed: “Anthony 13 Reed, Correctional Officer; KVSP; on or about January 19, 2019, approximately 1520 hours; Ad- 14 Seg Mental Health Treatment Room, adjoining hallway, A-Pod.” (Id. at 2.) On April 10, 2023, 15 the Court received information from the United States Marshals Service that Defendant Anthony 16 Reed died in 2021 from complications related to COVID, and could not be served. (ECF No. 27.) 17 Federal Rule of Civil Procedure 4(m) provides as follows: 18 If a defendant is not served within 120 days after the complaint is filed, the 19 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 20 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. 21 22 Fed. R. Civ. P. 4(m). 23 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 24 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 25 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 26 summons and complaint, and . . . should not be penalized by having his or her action dismissed 27 1 Defendant Bradford was personally served on April 26, 2023, and has not yet appeared. (ECF 28 No. 30.) This defendant will be addressed by separate order. 1 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 2 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 3 long as the prisoner has furnished the information necessary to identify the defendant, the 4 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 5 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 6 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 7 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 8 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 9 Here, the U.S. Marshal attempted to electronically serve Defendant Reed with the 10 information that Plaintiff provided. However, the Marshal was informed that Defendant Reed 11 was deceased, and therefore could not be served with process. If Plaintiff believes that this 12 information is incorrect, Plaintiff may attempt to provide further identifying information 13 regarding Defendant Reed. If Plaintiff is unable to provide the Marshal with the necessary 14 information to identify and locate this defendant, Defendant Reed shall be dismissed from this 15 action, without prejudice. 16 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 17 why Defendant Reed should not be dismissed from the action at this time. Plaintiff may respond 18 to this order by providing additional information that will assist the Marshal in identifying 19 Defendant Reed for service of process. 20 III. Notice of Suggestion of Death 21 Alternatively, if Plaintiff, or any other party, believes that the information received by the 22 United States Marshals Service is correct, they may file a notice of suggestion of death of 23 Defendant Reed, pursuant to Federal Rule of Civil Procedure 25(a)(1). 24 Federal Rule of Civil Procedure 25(a)(1) provides for the dismissal of Defendant Reed 25 from this action if a motion for substitution is not made within ninety days after service of a 26 statement noting Reed’s death. Fed. R. Civ. P. 25(a)(1). Two things are required of a party for 27 the running of the ninety-day period to commence: a party must 1) formally suggest the death of 28 the party on the record, and 2) serve the suggestion of death on the other parties and the nonparty 1 successors or representatives of the deceased. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 2 1994). In order for the ninety-day period for substitution to be triggered, a party must formally 3 suggest the death of the party upon the record, Fed. R. Civ. P. 25(a)(1), and must serve other 4 parties and nonparty successors or representatives of the deceased with a suggestion of death in 5 the same manner as required for service of the motion to substitute, Fed. R. Civ. P. 25(a)(3). 6 Thus, a party may be served with the suggestion of death by service on his or her attorney, Fed. 7 R. Civ. P. 5(b), while non-party successors or representatives of the deceased party must be 8 served the suggestion of death in the manner provided by Rule 4 for the service of a summons. 9 Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at 232–34. Rule 25 requires dismissal absent a motion 10 for substitution within the ninety-day period only if the statement of death was properly served. 11 Unicorn Tales, Inc., v. Bannerjee, 138 F.3d 467, 469–71 (2d Cir. 1998). 12 At this time, there has been no formal notice of suggestion of death of Defendant Reed on 13 the record. Plaintiff, or any other party, will be provided an opportunity to do so. If such a notice 14 is filed and properly served on the appropriate parties and nonparty successors or representatives 15 of the deceased, then the ninety-day period for the filing of a motion for substitution will begin to 16 run. 17 IV. Conclusion and Order 18 Based on the foregoing, IT IS HEREBY ORDERED that: 19 1. Within thirty (30) days from the date of service of this order, Plaintiff SHALL EITHER: 20 a. Show cause by written response why Defendant Reed should not be dismissed 21 from this action; 22 b. File a notice of suggestion of death of Defendant Reed, including either a proof of 23 service on the appropriate parties and nonparty successors or representatives of 24 Defendant Reed (or a request for service by the United States Marshals Service); 25 or 26 c. File a notice that he wishes to voluntarily dismiss Defendant Reed from this 27 action; 28 /// 1 2. This order does not preclude the filing of a notice of suggestion of death by any other 2 party before the expiration of the deadline; and 3 3. Plaintiff’s failure to respond to this order or the failure to show cause will result in 4 the dismissal of Defendant Reed from this action, due to Plaintiff’s failure to serve 5 process pursuant to Federal Rule of Civil Procedure 4(m). 6 IT IS SO ORDERED. 7 8 Dated: June 22, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28