Cunningham v. Ramos

Opinion

2 3 4 5 6 7 10 11 MELVIN LYNN CUNNINGHAM, JR., Case No.: 23cv351-JAH (MSB)

12 Plaintiff, ORDER EXTENDING TIME FOR SERVICE 13 v. 15 Defendant. 16 17 19 Plaintiff Melvin Lynn Cunningham, Jr. (“Plaintiff”) is a state prisoner proceeding 20 pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On 21 August 7, 2023, the Court screened Plaintiff’s Complaint as required by 28 U.S.C. §§ 22 1915(e)(2) & 1915A(b) and found that Plaintiff alleged plausible First and Eighth 23 Amendment claims against Officer Ramos but failed to state any plausible claim against 24 Officer Mora. (ECF No. 8 at 5‒8.) The Court instructed Plaintiff that within forty-five 25 days he could either: (1) file a Notice of Intent to proceed against only Officer Ramos, or 26 (2) file an Amended Complaint correcting the Complaint’s deficiencies. (Id. at 9.) On 27 February 1, 2024, Plaintiff filed a Notice of Intent to proceed with his claims against only 2 Summons for Officer Ramos [ECF No. 17], a blank U.S. Marshal Form 285, a certified 3 copy of the Complaint [ECF No. 1], and copies of the Court’s August 7, 2023 Order [ECF 4 No. 8] and February 27, 2024 Order [ECF No. 16]. (ECF No. 16 at 5‒6.) On July 12, 2024, 5 the Summons was returned unexecuted. (ECF No. 18.) In an accompanying letter, the 6 Litigation Coordinator at Richard J. Donovan Correctional Facility (“RJD”) stated, “I am 7 refusing service . . . due to the inability to identify any staff member with this name after 8 a thorough search of our records and files to match the date and location provided in 9 the complaint.” (Id. at 2.) Finally, on August 19, 2024, Plaintiff filed a letter explaining: 10 “I got a letter back stating they could not locate Alfonso Ramos with the information I 11 provided and said they will not serve it. I completed the form out to the best of my 12 ability. Mr. Ramos no longer works at R.J.D and I have no way to find him. So can you 13 please let me know how to proceed.” (ECF No. 19 at 1.) 15 Fed. R. Civ. P. 4(m) provides that “[i]f a defendant is not served within 90 days 16 after the complaint is filed, the court—on motion or on its own after notice to the 17 plaintiff—must dismiss the action without prejudice against that defendant or order 18 that service be made within a specified time. But if the plaintiff shows good cause for 19 the failure, the court must extend the time for service for an appropriate period.” Fed. 20 R. Civ. P. 4(m). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is 21 entitled to rely on the U.S. Marshal for service of the summons and complaint, and, 22 having provided the necessary information to help effectuate service, plaintiff should 23 not be penalized by having his or her action dismissed for failure to effect service[.]” 24 See Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). However, a pro se plaintiff 25 must “attempt to remedy any apparent service defects of which [he] has knowledge.” 26 Id. at 274 (quoting Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir.1987)).

27 Here, more than ninety days have passed, and Defendant Ramos has not been 2 2.) Plaintiff acknowledged receipt of the Litigation Coordinator’s letter and is aware of 3 the service defect; therefore, it is Plaintiff’s responsibility to attempt to remedy this 4 problem. See Puett, 912 F.2d at 274. 5 The Court construes Plaintiff’s letter [ECF No. 19] as a request for extension of 6 time to serve under Fed. R. Civ. P. 4(m) and GRANTS Plaintiff an extension of time to 7 serve Defendant Ramos. The Court hereby: 8 1. DIRECTS the Clerk to re-issue a summons as to Plaintiff’s Complaint upon 9 Defendant Alfonso Ramos and to forward that summons to him along with 10 another IFP Package containing a blank U.S. Marshal Form 285. Additionally, the 11 Clerk will provide Plaintiff with a certified copy of this Order; the Complaint [ECF 12 No. 1]; the August 7, 2023 Order granting Plaintiff’s Motion to Proceed In Forma 13 Pauperis [ECF No. 8]; and the February 27, 2024 Order directing U.S. Marshal 14 Service [ECF No. 16]. 15 2. DIRECTS Plaintiff, upon receipt of the IFP Package, to complete the U.S. Marshal 16 Form 285 as completely and accurately as possible, include an address where 17 Defendant Ramos may be found and/or subject to service, and return the IFP 18 Package to the U.S. Marshal on or before November 11, 2024, according to the 19 instructions the Clerk provides in the letter accompanying the IFP package. 20 Plaintiff must provide additional information to the U.S. Marshal Service so it can 21 locate and effectuate service on Defendant Ramos. Plaintiff shall promptly seek 22 such information through any means available to Plaintiff, including through the 23 California Public Records Act, Calif. Gov’t. Code § 6250, et seq. 24 3. ORDERS the U.S. Marshal to serve a copy of Plaintiff’s Complaint and summons 25 upon Defendant Ramos as directed by Plaintiff on the completed U.S. Marshal 26 Form 285. All costs of that service will be advanced by the United States. See 28

27 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 1 4. Failure to comply with this Order may result in a recommendation for dismissal 2 for failure to serve with process pursuant to Fed. R. Civ. P. 4(m). 4 ||Dated: September 26, 2024

6 Honorable Michael S. Berg United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28