(PC) Rannels v. Smith ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL W. RANNELS, Case No. 1:21-cv-00049-NODJ-SKO (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY 13 v. DEFENDANTS PUYAGOYA AND SOMMERS SHOULD NOT BE DISMISSED 14 SMITH, et al., FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT INFORMATION 15 Defendants. TO EFFECTUATE SERVICE 16 30-DAY DEADLINE 17 18 19 Plaintiff Daniel W. Rannels is proceeding pro se in this civil rights action brought 20 pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s Eighth Amendment deliberate 21 indifference to serious medical needs claims against Defendants Smith, Tortrice, Sommers and 22 Puyagoya. 23 I. BACKGROUND 24 Following screening of the second amended complaint, this Court issued its Order Finding 25 Service Appropriate on February 5, 2024. (Doc. 33.) Service of Defendants Steve Smith, Stoc 26 Tortrice, Sommers and Puyagoya was to be effected under the Court’s e-service pilot program. 27 (Id. at 1-2.) The Order included the following information regarding Defendants Puyagoya and Sommers: “Puyagoya, allegedly employed as a doctor at the [Sierra Conservation Center in 1 Jamestown, California (‘SCC’)] in 2018 and/or 2019” and “Sommers, allegedly employed as a 2 doctor at the SCC in 2018 and/or 2019.” (Id. at 2, emphasis in original.) 3 On February 9, 2024,1 the Court received a notice of intent not to waive personal service 4 as to Defendants Puyagoya and Sommers because neither could be identified. (Doc. 36 [“Unable 5 to Identify”].) On February 23, 2024, the United States Marshal advised the Court that service 6 could not be effected on Defendants Puyagoya and Sommers because despite reaching out to the 7 litigation coordinator at SCC neither individual could be identified based upon the information 8 provided. (Doc. 37.) 9 II. DISCUSSION AND ORDER 10 Federal Rule of Civil Procedure 4(m) provides as follows: 11 If a defendant is not served within 90 days after the complaint is filed, the court— 12 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 13 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 14 15 Fed. R. Civ. P. 4(m). 16 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 17 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 18 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 19 summons and complaint, and . . . should not be penalized by having his or her action dismissed 20 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 21 duties required of each of them . . ..” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). 22 “So long as the prisoner has furnished the information necessary to identify the defendant, the 23 marshal’s failure to effect service is ‘automatically good cause . . ..’” Walker v. Sumner, 14 F.3d 24 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 25 (1995). When a pro se plaintiff fails to provide the Marshal with accurate and sufficient 26 information to effect service of the summons and complaint, the Court’s sua sponte dismissal of 27 1 Also on February 9, 2024, the Court received a notice of intent to waive personal service for Defendants Smith and Tortrice. (Doc. 35.) Accordingly, the Court anticipates waivers as to these Defendants will be 1 the unserved defendant is appropriate. Walker, 14 F.3d at 1421-22. 2 Here, the United States Marshal has attempted to serve Defendants Puyagoya and 3 Sommers. The Marshal was advised that neither Puyagoya nor Sommers could be identified as 4 being employed at SCC based upon the information provided. Therefore, Plaintiff has failed to 5 provide the Marshal with accurate and sufficient information to effect service of the summons 6 and Plaintiff’s second amended complaint on Defendants Puyagoya and Sommers. Walker, 14 7 F.3d at 1421-22. It is his obligation to do so. Id. at 1422. If Plaintiff is unable to provide the 8 United States Marshal with the necessary information to locate these individuals, Defendants 9 Puyagoya and Sommers shall be dismissed from this action, without prejudice, pursuant to Rule 4 10 of the Federal Rules of Civil Procedure. 11 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 12 why Defendants Puyagoya and Sommers should not be dismissed from the action at this time. 13 Plaintiff may respond to this order by providing additional information2 that will assist the United 14 States Marshal in locating Defendants Puyagoya and Sommers for service of process. 15 Based on the foregoing, IT IS HEREBY ORDERED that: 16 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 17 why Defendants Puyagoya and Sommers should not be dismissed from this action; and 18 2. The failure to respond to this order or the failure to show cause will result in the 19 dismissal of any unidentified defendant from this action, due to Plaintiff’s failure to 20 serve process pursuant to Federal Rule of Civil Procedure 4(m). 21 IT IS SO ORDERED. 22 23 Dated: February 26, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 24 25 26 27 2 Helpful additional information might include, for example, first names or initials, badge numbers, or