(PC) Bierman v. Nurse 1 ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES BIERMAN, Case No. 1:20-cv-01777-HBK (PC) 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW CAUSE UNDER FEDERAL RULE OF CIVIL 13 v. PROCEDURE 4(M) 14 NURSE 1, 21 DAY DEADLINE 15 Defendant. 16 17 This matter comes before the Court upon periodic review of the file. Plaintiff who is 18 proceeding pro se and in forma pauperis is proceeding on his civil rights complaint filed under 42 19 U.S.C. § 1983. (Doc. Nos 1, Complaint). The Court determined the Complaint stated a claim for 20 a violation of Plaintiff’s Fourteenth Amendment rights for deliberate indifference as to his 21 medical condition against Nurse 1 as to the fall from his bunk but no other claim. (Doc. No. 16). 22 On April 20, 2023, Plaintiff filed a notice to proceed only on his Fourteenth Amendment claim 23 against Nurse 1 and dismissed Nurse 2 and medical staffing supervisor at the Kern County Lerdo 24 Detention Facility. (Doc. No. 17; see also Doc. No. 18). On April 26, 2023, Plaintiff was 25 directed to complete service forms as to Nurse 1. (Doc. No. 19). After granting Plaintiff an 26 extension of time, on June 23, 2023, Plaintiff submitted the completed service forms as to Nurse 27 1. (Doc. Nos. 22, 23). Using the service forms completed by Plaintiff, the Court directed the 28 United States Marshals Service (“USM”) personally serve Nurse 1. (Doc. No. 25). On 1 September 12, 2023, the USM returned the summons unexecuted as to Nurse 1 they could not 2 identify Nurse 1. (Doc. No. 26). Furthermore, the USM stated they could not locate Nurse 1 3 based on the information provided. (Id.). 4 Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant within 90 5 days of filing the complaint. Fed. R. Civ. P. 4(m). The time may be extended for good cause 6 shown. Id. If a defendant is not served within the requisite time period, after notice to plaintiff, 7 the court must dismiss the action without prejudice, or order that service be made within a certain 8 time period. Id. (emphasis added). 9 “Pro se litigants must follow the same rules of procedure that govern other litigants.” 10 Thomas v. Scott, 2015 U.S. Dist. LEXIS 96365, *6-*7 (C.D. Cal. Jun. 4, 2016)(findings and 11 recommendations to dismiss the prisoner plaintiff’s case for a failure to effect service adopted by 12 Thomas v. Scott, 2015 U.S. Dist. LEXIS 96387, 2015 WL 4507255 (C.D. Cal. Jul. 22, 2015)) 13 (quoting King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)(overruled in part by Lacy v. Maricopa 14 County, 693 F.3d 896 (9th Cir. 2021)) (citing Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 15 1995)(the failure of a pro-se litigant to follow the procedural rules justified the dismissal of the 16 pro-se litigant’s civil rights action). While prisoners may rely on the U.S. Marshal’s Office to 17 serve a defendant, a district court may dismiss a prisoner’s civil rights complaint for a failure to 18 effect service when the prisoner plaintiff fails to provide the U.S. Marshals with sufficient 19 information to serve a defendant. Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). The 20 rules of civil procedure are “based on the assumption that litigation is normally conducted by 21 lawyers[;]” however, the rules should not be interpreted in a manner that excuses “mistakes by 22 those who proceed without counsel.” McNeil v. United States, 508 U.S. 106, 113 (1993). 23 Plaintiff’s Rule 4(m) period did not commence running until the Court authorized service 24 of process and the Clerk of Court gave the USM the service-related documents provided by 25 Plaintiff. See Thomas, 2015 U.S. Dist. LEXIS 96365 at *6. Plaintiff’s Rule 4(m) period is 26 approaching expiration. As of the date of this order, Plaintiff has not provided the USM with 27 sufficient information to effect service on Defendant Nurse 1. (See generally docket). 28 Plaintiff must provide an updated address or contact information for Defendant Nurse 1. 1 | In his Complaint, Plaintiff identifies Nurse 1 as the Nurse who examined him on September 27, 2 | 2020 after he punched a wall and again on or about October 1, 2020, after he fell from his bunk. 3 | Plaintiff should attempt to obtain the name of Nurse 1| using the prison’s inmate request form or 4 | some other form. Presumably, Plaintiff filed a grievance in connection with the alleged denial of 5 | treatment after his fall from his bed on or about October 1, 2020. Such grievance form or the 6 | prison’s response thereto, might have the nurse’s name or other identifying information. 7 | Additionally, Plaintiff may request his pertinent medical file from the prison which would likely 8 | identify the name of Nurse 1, since Plaintiff admits she treated him on September 27, 2020, 9 | provided him with a sling and sent him to the hospital for an x-ray. 10 Alternatively, if he wishes, Plaintiff may voluntarily dismiss this action without prejudice 11 | pursuant to Fed. Rule Civ. P. 41 while he attempts to obtain identifying information for Nurse 1. 12 | If Defendant cannot effectuate service within his Rule 4(m) period, then he will need to show 13 || good cause why the Court should not dismiss Defendant Nurse | under Rule 4(m). The failure to 14 | show will result in both a dismissal of Defendant Nurse 1 and this action without prejudice. 15 Accordingly, it is ORDERED: 16 Within twenty-one (21) days of receipt of this this Order, Plaintiff shall provide an 17 || updated address or contact information for Defendant Nurse 1 or show cause why the Court 18 || should not dismiss Nurse | without prejudice under Rule 4(m). Alternatively, Plaintiff may file a 19 | notice of voluntary dismissal without prejudice pursuant to Federal Rule of Civil Procedure 41 20 | while he attempts to gather information to identify Nurse 1. 21 | Dated: _ September 18, 2023 Mihaw. □□ fares Back 23 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 25 26 27 28