(PC)Spears v. Chang ( 2023 )

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 DISCHARGING ORDER TO SHOW CAUSE 13 v. (Doc. 19) 14 FRANK CHANG, ORDER DIRECTING PLAINTIFF TO 15 Defendant. PROVIDE SUFFICIENT INFORMATION TO EFFECTUATE SERVICE UPON 16 DEFENDANT CHANG WITHIN 30 DAYS 17 18 19 Plaintiff John Louis Spears is proceeding pro se and in forma pauperis in this civil rights 20 action brought pursuant to 42 U.S.C. § 1983. This action proceeds solely on Plaintiff’s Eighth 21 Amendment deliberate indifference to serious medical needs claim against Defendant Chang. 22 I. RELEVANT BACKGROUND 23 The Court issued its Order Finding Service Appropriate on April 18, 2023, directing 24 service of process on Defendant Frank Chang, M.D., at the Substance Abuse Treatment Facility 25 (“SATF”) in Corcoran, California. (Doc. 14.) 26 On May 30, 2023, the California Department of Corrections and Rehabilitation (“CDCR”) 27 filed a notice of intent to waive service as to Defendant Chang. (Doc. 16.) However, on June 5, 1 at SATF, but failed to contact him. (Doc. 17.) A last known address was provided. (Id.) 2 On September 15, 2023, the United States Marshall filed its USM-285 form indicating 3 service could not be effected on Defendant Chang. (Doc. 18 at 1.) The United States Marshal was 4 advised by the current resident of 161 W. Fairview Avenue in San Gabriel, California, that Chang 5 has not resided at that address “as of March 2021.” (Id. at 2.) 6 On September 18, 2023, the Court issued its Order to Show Cause (“OSC”) Why 7 Defendant Chang Should Not Be Dismissed from this Action for Plaintiff’s Failure to Provide 8 Sufficient Information to Effectuate Service. (Doc. 19.) 9 On October 19, 2023, Plaintiff filed a response to the OSC. (Doc. 20.) 10 II. DISCUSSION 11 In his response to the OSC, Plaintiff contends he has “provided the Court and U.S. 12 Marshals information and location where defendant, Frank Chang, could [] be located for 13 effective service.” (Doc. 20 at 2.) He states because he is incarcerated, pro se and proceeding in 14 forma pauperis, he “has no other option but to rely upon the U.S. Marshal for service of summons 15 and complaint.” (Id.) Plaintiff contends that due to his incarceration, he “has no access to the 16 internet or social media to assist the U.S. Marshall and the Court to locate the defendant so that 17 service can be completed.” (Id.) Plaintiff states Defendant Chang, as a doctor, “has a medical 18 license and license number that the U.S. Marshal’s and Court can trace and find the defendant’s 19 current address and place of employment.” (Id. at 2-3.) Plaintiff states Defendant Chang should 20 have a driver’s license, “which if ran through the Department of Motor Vehicle(DMV) data base 21 the defendant’s current address would be provided and the U.S. Marshal could effectuate 22 service.” (Id. at 3.) Plaintiff contends Defendant Chang should not be dismissed from the action 23 because Plaintiff “has provided the Court and the U.S. Marshal’s all of the information he had 24 regarding” Defendant’s location. (Id.) Plaintiff asserts “Defendant either is currently or was an 25 employee of Department of Corrections and Rehabilitation(CDCR), at the Substance Abuse 26 Treatment Facility @ Corcoran, in California,” and that “CDCR should have and/or keep the 27 home number or cellphone number of [their] employees in cases such as this.” (Id.) 1 As the Court previously stated, if a pro se plaintiff fails to provide the Marshal with 2 accurate and sufficient information to effect service of the summons and complaint, dismissal of 3 the unserved defendant is appropriate. Fed. R. Civ. P. 4(m); Walker v. Sumner, 14 F.3d 1415, 4 1421-22 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). 5 Here, the United States Marshal has attempted to serve Defendant Frank Chang without success. 6 (Doc. 19.) Plaintiff identified Defendant Chang as a physician employed at SATF on February 2, 7 2017. (See Doc. 1 & Doc. 14 at 1.) The United States Marshal was advised by the CDCR that 8 Chang could not be located at SATF. (Doc. 17.) CDCR provided a last known address for Chang: 9 161 W. Fairview Avenue, in San Gabriel, California. (Id.) The United States Marshal then 10 attempted personal service at Defendant Chang’s last known address. (Doc. 18.) Those efforts 11 were unsuccessful because the Marshal was advised by the current occupant of the residence that 12 Chang has not resided at that address for more than two years. (Id.) In sum, Plaintiff has failed to 13 provide the Marshal with accurate and sufficient information to effect service of the summons 14 and Plaintiff’s complaint on Defendant Chang. Walker, 14 F.3d at 1421-22. 15 Plaintiff is entitled to assistance in effecting service due to his status as an incarcerated pro 16 se plaintiff proceeding in forma pauperis. Fed. R. Civ. P. 4(c)(3). It is Plaintiff's burden, however, 17 to obtain sufficient information regarding defendants’ identities and current addresses to effect 18 service of process. Puett v. Blandford, 92 F.2d 270, 275 (9th Cir. 1990) (in forma pauperis litigant 19 is entitled to have process served by U.S. Marshal if litigant provides necessary information to 20 help effectuate service). The United States Marshal has assisted Plaintiff; however, based upon 21 the information provided by Plaintiff service could not be completed. 22 It is not the Marshal’s responsibility to locate Defendant Chang. See Howard v. Encinas, 23 No. 1:18-cv-01710-DAD-EPG (PC), 2020 WL 2489634, *2 (E.D. Cal. May 14, 2020) (“As 24 Plaintiff has failed to provide the Marshal with accurate and sufficient information to effect 25 service of summons and complaint on defendant Leno and W. Hanna,” where the institution of 26 confinement at the time of the incident reported neither “Leno” nor “W. Hanna” was employed at 27 that institution, the Court recommended dismissal of those defendants) (recommendation adopted 1 1330316, at *2 (S.D. Cal. Mar. 25, 2019) (plaintiff suggested burden of locating defendants 2 should “be on the USMS or the Court” but it is plaintiff’s responsibility to provide the necessary 3 information and the “USMS does its best to effect service as instructed, but it does not have the 4 ability to track down every defendant named in a complaint if the information provided by the 5 plaintiff is faulty”). Nor does that burden fall on or extend to the Court. See Heredia, 2019 WL 6 1330316, at *2; Harbridge v. Hall, Lee, and Tucker, No. 1:10-cv-00473-DAD-JLT (PC), 2017 7 WL 1821282, at *5 (E.D. Cal. May 5, 2017) (“Plaintiff argues that the Ninth Circuit should 8 ‘clearly carve out ... a new rule’ requiring district courts to order the U.S. Marshal to access the 9 internet and public records to locate defendants who no longer work for the CDCR for purposes 10 of service. Plaintiff has failed to come forward with any legal precedent for imposing such 11 requirements on the U.S. Marshal and the court has found none. In addition, given the number of 12 incarcerated plaintiffs who proceed pro se in this district, the court declines to impose such an 13 overwhelming and additional burden on the U.S. Marshal”). 14 Further, the CDCR has already provided the last known address associated with 15 Defendant Chang, and it is not CDCR’s obligation to provide more. See Lear v. Navarro, No. 16 1:21-cv-00600-DAD-BAM (PC), 2022 WL 2819034, at *2 (E.D. Cal. July 19, 2022) (“as the 17 Marshal has already attempted to serve Defendant Plata with the information that was provided, 18 the Court finds that Plaintiff has not provided sufficient information to identify and locate 19 Defendant Plata for service of process. To the extent Plaintiff requests that the Court order 20 [CDCR] Defendants or defense counsel to provide such information directly to the Court, by 21 order or by email, the Court declines to do so”); Steward v. Igbinosa, No. 1:18-cv-00551-AWI- 22 BAM (PC), 2021 WL 3488282, at *2 (E.D. Cal. Aug. 9, 2021) (it is not CDCR’s responsibility to 23 provide the Court with updated contact information for the defendant; because plaintiff had “no 24 other information that can be used to locate Defendant Nelson, and as the Marshal has already 25 attempted to serve Defendant Nelson with the information provided, the Court finds that Plaintiff 26 has not provided sufficient information to identify and locate Defendant Nelson for service of 27 process”). 1 have attempted service based on the information that is Plaintiff’s burden to provide. While the 2 Court understands Plaintiff is incarcerated and has limited access to information, that limitation 3 does not shift the burden to the United States Marshal, CDCR, or this Court. 4 Plaintiff will be provided one final opportunity to provide additional information that 5 will assist the United States Marshal in locating Defendant Chang for service of process. If 6 Plaintiff is unable to provide the United States Marshal with the necessary information to locate 7 Defendant Chang, he will be dismissed from this action, without prejudice, pursuant to Rule 4 of 8 the Federal Rules of Civil Procedure. 9 III. CONCLUSION AND ORDER 10 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff SHALL provide the 11 Court with additional information concerning Defendant Chang’s current location within 30 days 12 of the date of service of this order. 13 Plaintiff is advised that a failure to provide sufficient information will result in a 14 recommendation that Defendant Chang be dismissed, without prejudice, from this action 15 due to Plaintiff’s failure to serve process pursuant to Federal Rule of Civil Procedure 4(m). 16 IT IS SO ORDERED. 17 18 Dated: October 20, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27