Azucena v. Runjyin

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CALEB J. AZUCENA, Case No. 23-cv-03234-HSG

8 Plaintiff, ORDER REQUIRING PLAINTIFF TO EFFECT SERVICE ON DEFENDANT 9 v. RUNJYIN

10 RUNJYIN, 11 Defendant.

12 13 On or about June 29, 2023, Plaintiff commenced this pro se action by filing a complaint 14 with this Court. Dkt. No. 1. On January 12, 2024, the Court screened the operative complaint and 15 found that it stated a facially plausible Bivens claim against United States Customs and Border 16 Protection agent Runjyin. Dkt. No. 7. The Court ordered the Clerk to issue summons and the 17 United States Marshal to serve, without prepayment of fees, a copy of the operative complaint 18 (Dkt. No. 1) and the service order (Dkt. No. 7) upon defendant United States Customs and Border 19 Protection agent Runjyin at the United States Customs and Border Protection San Francisco field 20 office, at 33 New Montgomery Street, 16th Floor, San Francisco, CA 94105, with a courtesy copy 21 sent to United States Custom and Border Protection Associate Chief Counsel (San Francisco), at 22 555 Battery Street, Ste 116, San Francisco CA 94111. See Dkt. No. 7 at 3. 23 On March 21, 2024, the United States Marshal filed an unexecuted service of summons for 24 defendant Runjyin, stating that, on January 25, 2024, they were informed that the Customs and 25 Border Protection office was unable to locate any employee with Runjyin as either a first or last 26 name: 27 // On 1/25/24 I called the CBP office. I asked the supervisor of that office to locate the first 1 or last name of an officer named Runjyin. The supervisor ran that name in their employee 5 database and told me there are no officers with that first or last name.

3 || Dkt. No. 10.! 4 A plaintiff who is incarcerated and proceeding in forma pauperis may rely on service by 5 || the Marshal, but such plaintiff “may not remain silent and do nothing to effectuate such service;” 6 || rather, “[a]t a minimum, a plaintiff should request service upon the appropriate defendant and 7 attempt to remedy any apparent defects of which [he] has knowledge.” Rochon v. Dawson, 828 8 || F.2d 1107, 1110 (Sth Cir. 1987). Absent a showing of “good cause,” a complaint pending for over 9 90 days is subject to dismissal without prejudice. See Fed. R. Civ. P. 44m). 10 Plaintiff has not provided sufficient information to allow the Marshal to locate and serve 11 defendant Runjyin, and the complaint was filed on June 29, 2023. Consequently, Plaintiff must 12 || remedy the situation or face dismissal of defendant Runjyin without prejudice. See 13 Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (holding prisoner failed to show cause 14 || why prison official should not be dismissed under Rule 4(m) where prisoner failed to show he had 3 15 provided Marshal with sufficient information to effectuate service). Accordingly, within twenty- a 16 || eight (28) days of this order, Plaintiff must effect service on defendant Runjyin, or submit to the 3 17 Court sufficient information to identify and locate defendant Runjyin such that the Marshal is able 18 to effect service. Failure to comply with the deadline set forth in this order will result in 19 dismissal of this action of defendant Runjyin without prejudice pursuant to Fed. R. Civ. P. 20 4(m), and dismissal of this action for failure to prosecute pursuant to Fed. R. Civ. P. 41(a). 21 IT IS SO ORDERED. 22 || Dated: 4/22/2024 23 Adapured 5 Ml). HAYWOOD S. GILLIAM, JR. 24 United States District Judge 25 26 27 28 ' On March 22, 2024, the United States Marshal Service filed another copy of the unexecuted summons with the Court. Dkt. No. 11.