(PC) Gibson v. Castellanos ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 REGINALD GIBSON, 1:21-cv-00794-ADA-GSA-PC 12 Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE WHY DEFENDANT C. RILEY 13 vs. SHOULD NOT BE DISMISSED FOR FAILURE TO EFFECT SERVICE 14 CASTELLANOS, et al., (ECF No. 26.) 15 Defendants. DEADLINE: SEPTEMBER 29, 2023 16 17 18 19 I. BACKGROUND 20 Reginald Gibson (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 21 with this civil rights action pursuant to 42 U.S.C. § 1983. On June 30, 2023, the Court ordered 22 that this case proceed on Plaintiff’s Second Amended Complaint against Defendant C/O E. 23 Castellanos for both the December 1, 2019, and April 4, 2020 incidents, and Defendant C/O C. 24 Riley for the December 1, 2019 incident, for use of excessive force in violation of the Eighth 25 Amendment; and against Defendant C. Riley for the December 1, 2019 incident, and against 26 Defendant E. Castellanos for the April 4, 2020 incident, for retaliation in violation of the First 27 Amendment, and dismissing all other claims and defendants based on Plaintiff’s failure to state 28 a claim, without leave to amend. (ECF No. 19.) 1 On August 30, 2023, the United States Marshal (“Marshal”) filed a return of service 2 unexecuted, indicating the Marshal was unable to locate Defendant C. Riley for service of 3 process. (ECF No. 26.) 4 II. SERVICE BY UNITED STATES MARSHAL 5 Pursuant to Rule 4(m), 6 If a defendant is not served within 90 days after the complaint is filed, the court, -- on motion or on its own after notice to the plaintiff -- must dismiss the action 7 without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must 8 extend the time for service for an appropriate period. 9 Fed. R. Civ. P. 4(m). 10 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 11 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “[A]n incarcerated 12 pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service 13 of the summons and complaint and . . . should not be penalized by having his action dismissed 14 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his 15 duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 16 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 17 (1995). “So long as the prisoner has furnished the information necessary to identify the 18 defendant, the marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker, 14 19 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)). However, 20 where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to 21 effect service of the summons and complaint, the Court’s sua sponte dismissal of the unserved 22 defendants is appropriate. Walker, 14 F.3d at 1421-22. 23 Background 24 On August 24, 2023, the Court directed the Marshal to initiate service of process upon 25 Defendant C. Riley in this action. (ECF No. 25.) On August 30, 2023, the Marshal filed a return 26 of service unexecuted as to Defendant C. Riley. (ECF No. 26.) The return of service indicated 27 that on August 30, 2023, the Marshal attempted service on Defendant C. Riley at Kern Valley 28 State Prison at the address provided by Plaintiff, and was notified that Defendant C. Riley is no 1 longer employed, the last known phone number and address are no longer valid, and an alternate 2 address is not able to be found. Id. 3 Pursuant to Rule 4(m), the Court will provide Plaintiff with an opportunity to show cause 4 why Defendant C. Riley should not be dismissed from the action at this time for inability to serve 5 process. Plaintiff has not provided sufficient information to identify and locate Defendant C. 6 Riley for service of process. The Marshal has attempted to locate this Defendant at the address 7 provided by Plaintiff, without success. If Plaintiff is unable to provide the Marshal with 8 additional information, Defendant C. Riley shall be dismissed from the action. 9 III. CONCLUSION 10 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 11 1. On or before September 29, 2023, Plaintiff shall show cause why Defendant C. 12 Riley should not be dismissed from this action pursuant to Rule 4(m); and 13 2. The failure to respond to this order will result in the dismissal of this action in its 14 entirety. 15 IT IS SO ORDERED. 16 17 Dated: September 6, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28