(PC) Howard v. Kern County Lerdo Facility Medical Cheif ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY HOWARD, Case No. 1:21-cv-00931-JLT-CDB (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT PETERS SHOULD NOT BE 13 v. DISMISSED FROM THIS ACTION FOR PLAINTIFF’S FAILURE TO PROVIDE 14 KERN COUNTY LERDO FACILITY SUFFICIENT INFORMATION TO MEDICAL CHIEF, et al., EFFECTUATE SERVICE 15 Defendants. 16 21-DAY DEADLINE 17 18 Plaintiff Billy Howard is proceeding pro se and in forma pauperis in this civil rights 19 action brought pursuant to 42 U.S.C. § 1983. The case proceeds against Defendants Ramon 20 Mansilungan, Kendra Lawrence, Kenya Gooden, and Elena Peters for deliberate indifference to 21 serious medical needs in violation of the Eighth Amendment. 22 I. INTRODUCTION 23 The Court issued its Order Finding Service Appropriate and Forwarding Service 24 Documents to Plaintiff for Completion and Return on June 27, 2023. (Doc. 30.) Plaintiff 25 submitted the completed service documents on July 12, 2023 (Doc. 31) and the Court issued its 26 Order Directing Service by the United States Marshals Service Without Prepayment of Costs on 27 that same date (Doc. 32). 1 On September 14, 2023, the United States Marshall filed its USM-285 form indicating 2 service could not be effected on Defendant Elena Peters. (Doc. 35 at 1.) The United States 3 Marshal was advised that Peters was not employed at Kern Medical Center. (Id.) 4 II. DISCUSSION AND ORDER 5 Federal Rule of Civil Procedure 4(m) provides as follows: 6 If a defendant is not served within 90 days after the complaint is filed, the court— 7 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 within a 8 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 9 10 Fed. R. Civ. P. 4(m). 11 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 12 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 13 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 14 summons and complaint, and . . . should not be penalized by having his or her action dismissed 15 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 16 duties required of each of them . . ..” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). 17 “So long as the prisoner has furnished the information necessary to identify the defendant, the 18 marshal’s failure to effect service is ‘automatically good cause . . ..’” Walker v. Sumner, 14 F.3d 19 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 20 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient 21 information to effect service of the summons and complaint, the Court’s sua sponte dismissal of 22 the unserved defendant is appropriate. Walker, 14 F.3d at 1421-22. 23 Here, the United States Marshal has attempted to serve Defendant Elena Peters. Plaintiff 24 identified Defendant Peters as “Kern County FAC Medical Chief et al.” (Doc. 35 at 1.) However, 25 the Marshal was advised that Peters is not employed at Kern Medical Center. Plaintiff has failed 26 to provide the Marshal with accurate and sufficient information to effect service of the summons 27 and Plaintiff’s complaint on Defendant Peters. Walker, 14 F.3d at 1421-22. If Plaintiff is unable 1 | Defendant Peters shall be dismissed from this action, without prejudice, pursuant to Rule 4 of the 2 | Federal Rules of Civil Procedure. 3 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 4 | why Defendant Peters should not be dismissed from the action at this time. Plaintiff may respond 5 | to this order by providing additional information that will assist the United States Marshal in 6 | locating Defendant Peters for service of process. 7 Based on the foregoing, IT IS HEREBY ORDERED that: 8 1. Within twenty-one (21) days from the date of service of this order, Plaintiff shall show 9 cause why Defendant Peters should not be dismissed from this action; and 10 2. The failure to respond to this order or the failure to show cause will result in the 11 dismissal of any unidentified defendant from this action, due to Plaintiff's failure to 12 serve process pursuant to Federal Rule of Civil Procedure 4(m). 13 | IT IS SO ORDERED. Dated: _ September 15, 2023 | Vv Vv RR 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28