1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Carlos GUERRERO, Case No.: 20-cv-01315-LL-BGS 12 Plaintiff, ORDER REGARDING PLAINTIFF’S 13 v. MOTION REQUESTING STATUS 14 [ECF No. 11] 15 T. MOORE, 16 Defendant. 17 18 Plaintiff Carlos Guerrero, a state prisoner proceeding pro se and in forma pauperis, 19 filed this action under 42 U.S.C. § 1983 on July 10, 2020. (ECF No. 1.) On September 2, 20 2020, the Court issued an order granting Plaintiff’s motion to proceed in forma pauperis 21 (“IFP”) and directing the U.S. Marshal (“USMS”) to effect service on the Defendant T. 22 Moore. (ECF No. 5.) The summons for Defendant T. Moore was returned unexecuted on 23 December 14, 2020. (ECF No. 7.) On August 3, 2021, the Court indicated that Plaintiff 24 sufficiently identified Defendant T. Moore as an employee of R.J. Donovan (“RJD”) and 25 the California Department of Corrections and Rehabilitation (“CDCR”) during the time of 26 the incident. (ECF No. 10 at 2.) The Court then directed the USMS to contact either the 27 Litigation Coordinator at RJD or the CDCR’s Legal Affairs Division, if necessary, to 28 obtain the current/forwarding address within the CDCR’s records or possession. (Id. at 3.) 1 The Court then indicated that any address shall be forwarded to the USMS and directed the 2 USMS to serve a copy of Plaintiff’s complaint and summons upon Defendant T. Moore 3 within 30 days of receipt of the address. (Id.) 4 On January 6, 2022, Plaintiff filed his Motion to Know Update Status of U.S. 5 Marshals Serving Defendant. (ECF No. 11.) Plaintiff indicated that he still has not heard 6 anything back from the USMS to know if the Defendant T. Moore had been served. (Id.) 7 Plaintiff requested that the Court can make an order to the USMS to find out whether the 8 USMS received a forwarding address and if it got served. (Id.) 9 After reviewing the docket, it is unclear whether Defendant T. Moore has yet to be 10 served. However, the Court previously found that Plaintiff sufficiently identified 11 Defendant T. Moore as an employee of RJD and the CDCR during the time of the incident 12 and that Plaintiff is entitled to rely on the USMS to effect service, as long as the privacy of 13 Defendant T. Moore’s forwarding address can be preserved and easily ascertained by 14 reference to personnel records. (See ECF No. 10 at 2.) 15 Accordingly, the Court DIRECTS the Clerk of the Court to forward a copy of this 16 order to the USMS. 17 Further, the Court DIRECTS the USMS to make a reasonable effort to locate 18 Defendant T. Moore, as follows: 19 1. Within 30 days from the date of this Order, the USMS is directed to make further 20 inquiry of either the RJD Litigation Coordinator or the CDCR’s Legal Affairs 21 Division regarding Defendant T. Moore’s last known address. If the RJD Litigation 22 Coordinator or CDCR’s Legal Affairs Division are unable to locate Defendant T. 23 Moore or his last known address, some explanation should be proffered by the RJD 24 Litigation Coordinator or CDCR’s Legal Affairs Division as to why they lack such 25 information. 26 2. Should the RJD Litigation Coordinator or CDCR’s Legal Affairs Division be unable 27 to locate Defendant T. Moore or his last known address, within 10 days of receipt, 28 the USMS shall submit the RJD Litigation Coordinator’s or CDCR’s Legal Affairs 1 Division’s response and explanation to the Court. The confidentiality of Defendant 2 T. Moore’s personal information must be maintained. 3 3. If the RJD Litigation Coordinator or CDCR’s Legal Affairs Division are able to 4 locate Defendant T. Moore or his last known address, within 10 days of receipt of 5 Defendant T. Moore’s last known address, the USMS shall notify Defendant T. 6 Moore of the commencement of this action and request a waiver of service of 7 summons in accordance with the provisions of Fed. R. Civ. P. 4(d) and 28 U.S.C. § 8 566(c). If the waiver of service of summons is not returned by Defendant T. Moore 9 within 60 days from the date of mailing the request for waiver, the USMS shall: 10 a. Personally serve process and a copy of this Order upon Defendant T. Moore 11 pursuant to Rule 4 of the Federal Rules of Civil Procedures and 28 U.S.C. § 12 566(c) and shall command all necessary assistance from the RJD Litigation 13 Coordinator or CDCR’s Legal Affairs Division to execute this Order. The 14 USMS shall maintain the confidentiality of all information provided by the 15 RJD Litigation Coordinator or CDCR’s Legal Affairs Division pursuant to 16 this Order. 17 b. Within 10 days after personal service is effected, the USMS shall file the 18 return of service for Defendant T. Moore, along with evidence of any attempts 19 to secure a waiver of service of summons and of the costs subsequently 20 incurred in effecting service on Defendant T. Moore. 21 Plaintiff should take notice that the court is undertaking an extraordinary measure to 22 assist him under the given circumstances. “Such assistance has not been and will not be 23 the regular practice of this Court.” McLean v. Gutierrez, No. EDCV15275RGKSP, 2016 24 WL 11521653, at *2 (C.D. Cal. May 2016) (citing Hampton v. Peeples, No. 6:14-CV-104, 25 2016 WL 845332, at *2 (S.D. Ga. Mar. 2016)). Furthermore, Plaintiff, and not the Court, 26 is ultimately responsible for serving Defendant T. Moore. See Penton v. Pool, 724 F. 27 App’x 546, 551 (9th Cir. 2018) (“[O]ur holding that Penton has shown ‘good cause’ for 28 failure to timely effect service does not consign his action to a fate of eternal suspension 1 ||should the Marshals ultimately be unable to locate Nunez. If the district court is satisfied 2 || that the Marshals have fulfilled their obligation to search for a viable address where Nunez 3 be served, then it would act within its discretion to dismiss the action against Nunez 4 ||under Rule 4(m).”); Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (dismissing 5 || case where prisoner “did not prove that he provided the marshal with sufficient information 6 serve” the defendant); Hampton, 2016 WL 1688782, at *3 (upholding dismissal when 7 |junable to service defendant despite court order for last known address from defendant’s 8 ||former government employer). Should these efforts to effect service of process fail, the 9 || action against Defendant T. Moore may be dismissed. See Fed. R. Civ. P. 44m). 10 IT IS SO ORDERED. 11 |/Dated: April 15, 2022 p / / 12 on. Bernard G. Skomal 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28