(PC) Amico v. Zaldivar-Galves ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 JASON AMICO, Case No. 1:22-cv-01499-SAB (PC) 10 Plaintiff, ORDER TO SHOW CAUSE WHY 11 DEFENDANT IDALBERTO ZALDIVAR- v. GALVES SHOULD NOT BE DISMISSED 12 PURSUANT TO FEDERAL RULE OF IDALBERTO ZALDIVAR-GALVES, CIVIL PROCEDURE 4(M) 13 Defendant. (ECF No. 17) 14 15 16 Plaintiff Jason Amico is proceeding pro se and in forma pauperis in this civil rights action 17 filed pursuant to 42 U.S.C. § 1983. 18 This case is proceeding against Defendant Idalberto Zaldivar-Galvez for deliberate 19 indifference to a serious medical need in violation of the Eighth Amendment. 20 On January 5, 2023, the Court an order directing electronic service of the first amended 21 complaint on Defendant Idalberto Zaldivar-Galvez. (ECF No. 12.) 22 On March 2, 2023, a notice of intent to not waive service was returned with a notation to 23 contact the Management Solution Contracts Team. (ECF No. 16.) Accordingly, service was 24 thereafter forwarded to the United States Marshal (USM). 25 On May 5, 2023, the USM returned the summons unexecuted, noting that the waiver of 26 service was mailed on April 4, 2023. (ECF No. 17.) 27 On May 3, 2023, the summons was forwarded to the Bakersfield office for personal service. (Id.) On May 4, 2023, the USM spoke with the receptionist at VipMD who stated that 1 Defendant Idalberto Zaldivar-Galvez has not worked at that office since about 2021 and they did 2 not have any forwarding information. (Id.) On May 5, 2023, the USM contacted other various 3 locations to locate Defendant Idalberto Zaldivar-Galvez, but was told no one by the name could 4 be located. (Id.) 5 Pursuant to Federal Rule of Civil Procedure 4: If a defendant is not served within 90 days after the complaint is filed, the court “on 6 motion or on its own after notice to the plaintiff” must dismiss the action without 7 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 extend the time for service 8 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 of 13 the summons and complaint and ... should not be penalized by having his action dismissed for 14 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 Because the USM has not been successful in locating Defendant Idalberto Zaldivar- 24 Galvez, pursuant to Rule 4(m), the court will provide Plaintiff with an opportunity to show 25 cause why Defendant Idalberto Zaldivar-Galvez, should not be dismissed from this action for 26 failure to serve process. If Plaintiff is unable to provide the USM with additional information, 27 Defendant Idalberto Zaldivar-Galvez shall be dismissed from this action. 1 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 2 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show 3 | cause why Defendant Idalberto Zaldivar-Galvez should not be dismissed from this action 4 | pursuant to Rule 4(m); and 5 2. Plaintiff's failure to respond to this order will result in a recommendation that 6 | Defendant Idalberto Zaldivar-Galvez be dismissed from the action, without prejudice. 7 8 IT IS SO ORDERED. DAA (e_ 9 | Dated: _May 9, 2023 _ ef 0 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28