(PC) Cunningham v. Humphey ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 L. C. CUNNINGHAM, No. 1:23-cv-00564-ADA-SAB (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT P. MURPHY SHOULD NOT 13 v. BE DISMISSED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(M) 14 P. HUMPHEY, et al., (ECF No. 24) 15 Defendants. 16 17 Plaintiff L.C. Cunningham is proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. 19 This case is proceeding on Plaintiff’s failure to protect claim against Defendants Lacsina 20 and Murphy. (ECF No. 118.) 21 On July 19, 2023, the Court ordered that the complaint be electronically served on 22 Defendants. (ECF No. 19.) 23 On August 25, 2023, the California Department of Corrections and Rehabilitation (CDCR) 24 returned a notice of intent to waive service of process as to Defendant Lacsina. (ECF No. 22.) On 25 this same date, CDCR issued a notice of intent not to waive service as to Defendant Murphy with 26 a notation “unable to identify.” (ECF No. 23.) 27 Service of process for Defendant Murphy was therefore forwarded to the United States 28 Marshal. On August 30, 2023, the United States Marshal returned the summons unexecuted with 1 a notation that “Per KVSP [litigation coordinator] they have nobody by that name has [sic] worked 2 there and nothing even close to that name. More information needed.” (ECF No. 24.) 3 Pursuant to Federal Rule of Civil Procedure 4: 4 If a defendant is not served within 90 days after the complaint is filed, the court “on motion 5 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 specified time. But if the plaintiff 6 shows good cause for the failure, the court must extend the time for service for an appropriate period. 7 Fed. R. Civ. P. 4(m). 8 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 9 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “[A]n incarcerated pro 10 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 11 summons and complaint and ... should not be penalized by having his action dismissed for failure 12 to effect service where the U.S. Marshal or the court clerk has failed to perform his duties.” Walker 13 v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th 14 Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the 15 prisoner has furnished the information necessary to identify the defendant, the marshal's failure to 16 effect service is ‘automatically good cause....’ ” Walker, 14 F.3d at 1422 (quoting Sellers v. United 17 States, 902 F.2d 598, 603 (7th Cir. 1990)). However, where a pro se plaintiff fails to provide the 18 Marshal with accurate and sufficient information to effect service of the summons and complaint, 19 the court's sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421- 20 22. 21 Because the USM has not been successful in locating Defendant Murphy, pursuant to Rule 22 4(m), the court will provide Plaintiff with an opportunity to show cause why Defendant Murphy, 23 should not be dismissed from this action for failure to serve process. If Plaintiff is unable to provide 24 the USM with additional information, Defendant Murphy shall be dismissed from this action. 25 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 26 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show 27 cause why Defendant Murphy should not be dismissed from this action pursuant to Rule 4(m); and 28 1 2. Plaintiff's failure to respond to this order will result in a recommendation that 2 | Defendant Murphy be dismissed from the action, without prejudice. 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ September 5, 2023 ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28