(PC)Spears v. Chang ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN LOUIS SPEARS, Case No.: 1:22-cv-00726 SKO (PC) 12 Plaintiff, ORDER DIRECTING UNITED STATES 13 v. MARSHAL TO SERVE DEFENDANT FRANK CHANG 14 FRANK CHANG, 15 Defendant. 16 17 Plaintiff John Louis Spears is proceeding pro se and in forma pauperis in this civil rights 18 action brought pursuant to 42 U.S.C. § 1983. This action proceeds against Defendant Frank 19 Chang for a violation of the Eighth Amendment, pursuant to 42 U.S.C. § 1983. 20 I. BACKGROUND 21 Following screening of Plaintiff’s complaint, this Court issued its Order Finding Service 22 Appropriate on April 18, 2023. (Doc. 14.) Service was to be effected on “Frank Chang, M.D., 23 allegedly employed as physician at the California Substance Abuse Treatment Facility in 24 Corcoran, on February 2, 2017.” (Id.) 25 On May 30, 2023, the California Department of Corrections and Rehabilitation (“CDCR”) 26 filed a notice of intent to waive service for Defendant Chang at the Substance Abuse Treatment 27 Facility (“SATF”). (Doc. 16.) On June 5, 2023, the CDCR filed a notice of intent not to waive service, indicating attempted contact with Defendant Chang at SATF “failed,” and a last known 1 address of “161 W. Fairview Ave., San Gabriel, CA 91776” was provided. (Doc. 17.) 2 On September 15, 2023, the United States Marshal Service filed its USM-285 form 3 indicating service could not be effected on Defendant Frank Chang. (Doc. 18 at 1.) The United 4 States Marshal was advised by the current resident of 161 W. Fairview Avenue in San Gabriel, 5 California, that Chang has not resided at that address “as of March 2021.” (Id. at 2.) 6 The Court issued its Order To Show Cause (“OSC”) Why Defendant Chang Should Not 7 Be Dismissed From This Action For Plaintiff’s Failure To Provide Sufficient Information To 8 Effectuate Service on September 18, 2023. (Doc. 19.) Plaintiff was ordered to respond to the OSC 9 or, alternatively, to provide additional information concerning Defendant Chang’s current 10 location. (Id. at 3.) After Plaintiff filed a response, (Doc. 20), the Court issued its Order 11 discharging the OSC and directed Plaintiff to provide sufficient information to effectuate service 12 upon Defendant Chang within 30 days. (Doc. 21.) 13 After a brief extension of time, on December 26, 2023, Plaintiff filed a document titled 14 “Response to Order Directing Plaintiff to Provide Sufficient Information to Effectuate Service on 15 Defendant Chang.” (Doc. 25.) 16 II. DISCUSSION 17 Request for Judicial Notice 18 Plaintiff seeks judicial notice pursuant to “F.R.C.P. 501” that the “courts have imposed on 19 this indigent prisoner the responsibility to locate and provide the courts with any and all relevant 20 contact information for defendant Frank Chang.” (Doc. 25 at 1.) Plaintiff contends he “had to 21 borrow funds from family members just [to] obtain investigative services for the whereabouts of 22 the defendant in this case.” (Id.) 23 The Court presumes Plaintiff intended to cite Rule 201 of the Federal Rules of Evidence. 24 Titled “Judicial Notice of Adjudicative Facts” that rules provides as follows: 25 (a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact. 26 (b) Kinds of Facts That May Be Judicially Noticed. The court may 27 judicially notice a fact that is not subject to reasonable dispute because it: 1 (1) is generally known within the trial court's territorial jurisdiction; or 2 (2) can be accurately and readily determined from sources 3 whose accuracy cannot reasonably be questioned. 4 (c) Taking Notice. The court: 5 (1) may take judicial notice on its own; or 6 (2) must take judicial notice if a party requests it and the court is supplied with the necessary information. 7 (d) Timing. The court may take judicial notice at any stage of the 8 proceeding. 9 (e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature 10 of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard. 11 (f) Instructing the Jury. In a civil case, the court must instruct the 12 jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed 13 fact as conclusive. 14 As the Court has explained previously (see Doc. 19 at 3 & Doc. 21 at 3), it is Plaintiff’s 15 obligation to provide adequate and sufficient information to effect service of the summons and 16 complaint despite his indigency. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). 17 Plaintiff was ordered “to provide the Court with additional information concerning Defendant 18 Chang’s current location” (Doc. 21 at 5; see also Doc. 19 at 3). The Court did not order Plaintiff 19 “to provide the courts with any and all relevant contact information.” 20 Second, whether Plaintiff “had to borrow funds from family members” to “obtain 21 investigative services” is not a fact “generally known within [this Court’s] territorial jurisdiction,” 22 nor is Plaintiff’s statement a fact that “can be accurately and readily determined from sources 23 whose accuracy cannot reasonably be questioned.” See Fed. R. Evid. 201(b)(1) & (2). 24 For these reasons, the Court denies Plaintiff’s request that the Court take judicial notice of 25 it having “imposed on this indigent prisoner the responsibility to locate and provide the courts 26 with any and all relevant contact information for defendant Frank Chang” or that Plaintiff “had to 27 borrow funds from family members” in order to “obtain investigative services.” 1 Additional Information Provided by Plaintiff 2 Plaintiff has provided additional information to the Court concerning Defendant Chang. 3 That information includes licensing status, aliases, relatives and close associates, a legal business 4 name, business mailing addresses, addresses associated with Chang’s practice, current home 5 addresses, and current telephone numbers. (Doc. 25 at 2-5.) 6 The Court will direct the United States Marshal to attempt to re-serve Frank Chang, M.D. 7 given this additional information. 8 Plaintiff’s Request That Defendant Chang Not Be Dismissed 9 Plaintiff requests Defendant Chang “[n]ot be dismissed from this claim and all attempts 10 made by defendant Frank Chang to avoid service, controverting the USMS ability to properly 11 effectuate service and using his close associates and relatives to lie to the USMS and help the 12 defendant evade service must be punished for delaying proceedings and disrespecting the courts 13 time.” (Doc. 25 at 5.) 14 There is no evidence before the Court that Defendant Chang has sought to avoid service or 15 that Chang’s associates or relatives have lied to the United States Marshal to help him evade 16 service of process and delay these proceedings. The record before this Court indicates only that 17 Defendant Chang could not be located at either SATF or at his last known address in San Gabriel, 18 California. 19 As set forth above, the Court will order the United States Marshal to attempt service of 20 process on Defendant Chang in light of the additional information Plaintiff has provided to the 21 Court. As a result, no action is being taken at this time to dismiss Defendant Chang from the 22 action. Should future efforts to effectuate service of process be unsuccessful, the Court may be 23 required to take such action pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. 24 III. CONCLUSION AND ORDER 25 Following submission of additional contact information provided by Plaintiff (Doc. 25 at 26 2-5), the United States Marshal will be directed to serve the summons and complaint upon 27 Defendant Frank Chang employing the information provided by Plaintiff. 1 Accordingly, and for the reasons stated above, IT IS HEREBY ORDERED that: 2 1. The Clerk of the Court SHALL provide the United States Marshal with a copy of the 3 complaint, the summons, Plaintiff’s response filed December 26, 2023 (Doc. 25) and 4 this order; and 5 2. The United States Marshal SHALL serve process of the complaint, the summons, and 6 this order upon Defendant Frank Chang pursuant to Fed. R. Civ. P. 4 and 28 U.S.C. § 7 566(c). Within 10 days of personal service, the United States Marshal shall file the 8 return of service, along with the costs subsequently incurred in effecting service. 9 These costs shall be enumerated on the USM-285 form and shall include the costs 10 incurred by the United States Marshal for photocopying the summons and complaint 11 and for preparing new USM-285 forms, if required. Costs of service will be taxed 12 against each personally served defendant in accordance with Fed. R. Civ. P. 4(d)(2). 13 IT IS SO ORDERED. 14 15 Dated: January 2, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27