(PC)Calloway v. Youssee ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMISI JERMAINE CALLOWAY, Case No. 1:21-cv-01450-JLT-BAM (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT T. LOAR SHOULD NOT BE 13 v. DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT 14 YOUSSEE, et al., INFORMATION TO EFFECTUATE SERVICE 15 Defendants. (ECF No. 25) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff Jamisi Jermaine Calloway (“Plaintiff”) is a state prisoner proceeding pro se in 19 this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first 20 amended complaint against Defendants Y. Rao, D. Pilar, H. Diaz, T. Loar, and H. Smuzynski for 21 deliberate indifference to serious medical needs in violation of the Eighth Amendment when they 22 released Plaintiff from a suicide crisis bed, and against Defendants D. A. Lopez and M. Cuevas 23 for deliberate indifference to serious medical needs in violation of the Eighth Amendment when 24 they failed to intervene during Plaintiff’s two suicide attempts. 25 On June 21, 2022, the Court issued an order directing service on Defendants Y. Rao, D. 26 Pilar, H. Diaz, T. Loar, H. Smuzynski, D. A. Lopez, and M. Cuevas under the Court’s E-Service 27 pilot program for civil rights cases for the Eastern District of California. (ECF No. 25.) The 28 order included the following information regarding Defendant Loar: “T. Loar, Psychologist, 1 KVSP; on or about May 20, 2020.” (Id. at 2.) On July 29, 2022, the Court received information 2 that Defendant Loar could not be identified. 3 Federal Rule of Civil Procedure 4(m) provides as follows: 4 If a defendant is not served within 120 days after the complaint is filed, the 5 court—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 6 within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 7 8 Fed. R. Civ. P. 4(m). 9 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 10 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 11 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 12 summons and complaint, and . . . should not be penalized by having his or her action dismissed 13 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 14 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 15 long as the prisoner has furnished the information necessary to identify the defendant, the 16 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 17 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 18 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 19 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 20 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 21 Here, the U.S. Marshal attempted to electronically serve Defendant Loar with the 22 information that Plaintiff provided. However, the Marshal was informed that there was not 23 enough information to identify Defendant Loar for service of process. If Plaintiff is unable to 24 provide the Marshal with the necessary information to identify and locate this defendant, 25 Defendant Loar shall be dismissed from this action, without prejudice. 26 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 27 why Defendant Plata should not be dismissed from the action at this time. Plaintiff may respond 28 to this order by providing additional information that will assist the Marshal in identifying 1 Defendant Loar for service of process. 2 Based on the foregoing, it is HEREBY ORDERED that: 3 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 4 why Defendant Loar should not be dismissed from this action; and 5 2. The failure to respond to this order or the failure to show cause will result in the 6 dismissal of any unidentified defendant from this action due to Plaintiff’s failure to 7 serve process pursuant to Federal Rule of Civil Procedure 4(m). 8 IT IS SO ORDERED. 9 10 Dated: August 1, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28