(PC) Rood v. Department of Corrections ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COLTON JAMES ROOD, Case No. 1:19-cv-01517-JLT-HBK (PC) 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW CAUSE UNDER FEDERAL RULE OF CIVIL 13 v. PROCEDURE 4(M) 14 N. KEOVILAY-SEE, SCOTT FOURTEEN DAY DEADLINE FRAUENHEIM, RON CARVER, FNU 15 PHILLIPS, 16 Defendants. 17 18 This matter comes before the Court upon periodic review of the file. Plaintiff is a state 19 prisoner proceeding pro se and in forma pauperis on his First Amended Complaint pursuant to 42 20 U.S.C. § 1983 as screened. (Doc. Nos. 27, 33). Service was directed in accordance with the 21 Court’s E-Service pilot program for civil rights for the Eastern District of California. (Doc. No. 22 34). The California Department of Corrections (“CDCR”) advised they could not identify an 23 Defendant by the name of “Philips” or “Phillips” and could not waive service on behalf of former 24 CDCR employee, Ron Carver. (Doc. Nos. 36, 37). CDCR provided the last known telephone 25 number for Ron Carver as maintained in its records. (Id.). Despite multiple efforts, the United 26 States Marshals Service (“USM”) was unsuccessful in effectuating service on Mr. Carver or 27 identifying a Defendant by the name “Philips.” (Doc. No. 41). On August 12, 2022, the Court 28 issued an Order to Show Cause directing Plaintiff to provide an updated addresses and/or contact 1 | information for Defendants Phillips and Ron Carver and granted Plaintiff an extension of time to 2 || serve Defendants Phillips and Ron Carver. (Doc. Nos. 44-46). On February 15, 2023, the Court 3 | further afforded Plaintiff a final opportunity, through discovery, to identify and provide the Court 4 | with updated addresses or contact information for Defendants Phillips and Ron Carver within 5 | sixty (60) days or the Court would recommend the dismissal of Phillips and Ron Carver pursuant 6 | to Fed. R. Civ. P. 4Gm). (Doc. No. 59 at 3:14-18). 7 If a defendant is not served within ninety (90) days after a complaint is filed, the court 8 | must, after notice to the plaintiff, dismiss the action without prejudice. Fed. R. Civ. P. 4(m) 9 | (emphasis added). “Pro se litigants must follow the same rules of procedure that govern other 10 | litigants.” Thomas v. Scott, 2015 U.S. Dist. LEXIS 96365, *6-*7 (C.D. Cal. Jun. 4, 11 | 2016)(findings and recommendations to dismiss the prisoner plaintiffs case for a failure to effect 12 | service adopted by Thomas v. Scott, 2015 U.S. Dist. LEXIS 96387, 2015 WL 4507255 (C.D. Cal. 13 } Jul. 22, 2015)) (quoting King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)(overruled in part by 14 | Lacy v. Maricopa County, 693 F.3d 896 (9th Cir. 2021)) (citing Ghazali v. Moran, 46 F.3d 52, 15 | 53-54 (9th Cir. 1995)(the failure of a pro-se litigant to follow the procedural rules justified the 16 | dismissal of the pro-se litigant’s civil rights action). Despite being given multiple opportunities, 17 | Plaintiff has not provided the Court with an updated address or contact information for 18 | Defendants Phillips and Ron Carver and the time to do so has expired. 19 Accordingly, it is ORDERED: 20 Within fourteen (14) days of receipt of this Order, Plaintiff shall provide to the Court an 21 | address and/or contact information for Defendants Phillips or Ron Carver absent which the Court 22 | will recommend the dismissal, without prejudice, of Defendants Phillips or Ron Carver pursuant 23 | to Fed. R. Civ. P. 4(m). 24 °° | Dated: _ May 15, 2023 Mihaw. Wh. foareh fackte 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 28