(PC) Bailey v. Cox

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

TIMOTHY BAILEY, Case No. 1:22-cv-00757-JLT-SAB (PC)

Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT L. HERNEDEZ SHOULD v. NOT BE DISMISSED FOR FAILURE TO PROVIDE SUFFICIENT INFORMATION T. COX, et al., TO EFFECUTATE SERVICE OF PROCESS

Defendants. (ECF No. 19)

Plaintiff Timothy Bailey is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). This action proceeds on Plaintiff's excessive force claim against Defendants Zaragoza, Cox, Runmos, Jr., Gunn, Hernedez, and Mejia, and sexual assault claim against Defendant Mejia. (ECF No. 12.) On October 28, 2022, the Court forwarded Plaintiff the necessary service of process forms for completion and return within thirty days. (ECF No. 12.) On December 14, 2022, after Plaintiff returned the completed service of process forms, the Court issued an order directing service on Defendants Zaragoza, Cox, Runmos, Jr., Gunn, Hernedez, and Mejia by the United States Marshal. (ECF No. 16.) /// /// Federal Rule of Civil Procedure 4(m) provides as follows: If a defendant is not served within 120 days after the complaint is filed, the 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 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. Fed. R. Civ. P. 4(m). In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint, and ... should not be penalized by having his or her action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the duties required of each of them....” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So long as the prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to effect service is ‘automatically good cause....’ ” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint, the Court's sua sponte dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421– 22. Here, the U.S. Marshal attempted to serve Defendant L. Hernedez with the information that Plaintiff provided. However, the Marshal was informed that the officer was “unknown” and “unidentified” for service of process. If Plaintiff is unable to provide the Marshal with the necessary information to identify and locate this Defendant, Defendant L. Hernedez shall be dismissed from this action, without prejudice. Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause why Defendant L. Hernedez Plata should not be dismissed from the action at this time. Plaintiff may respond to this order providing additional information that will assist the Marshal in identifying Defendant L. Hernedez for service of process. ° Based on the foregoing, it is HEREBY ORDERED that: ‘ 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause ° why Defendant L. Hernedez Loar should not be dismissed from this action; and 2. The faiilure to respond to this order or the failure to show cause will result in the dismissal of any unidentified Defendant from this action due to Plaintiff's failure to serve process pursuant to Federal Rule of Civil Procedure 4(m). ITT IS SO ORDERED. A (Fe _ Dated: _February 9, 2023 IF UNITED STATES MAGISTRATE JUDGE