(PC) Cone v. Lopez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRIS MONROE CONE, Case No. 1:25-cv-00669-KES-BAM (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT LOPEZ SHOULD NOT BE 13 v. DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT 14 LOPEZ, INFORMATION TO EFFECTUATE SERVICE 15 Defendant. (ECF No. 10) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff Chris Monroe Cone (“Plaintiff”) is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds 20 against Defendant Lopez for excessive force in violation of the Eighth Amendment for the 21 incident on August 28, 2024. 22 On June 18, 2025, the Court issued an order directing service on Defendant Lopez under 23 the Court’s E-Service pilot program for civil rights cases for the Eastern District of California. 24 (ECF No. 10.) The order included the following information regarding Defendant Lopez: “Mr. 25 Lopez, Correctional Officer; California Substance Abuse Treatment Facility; on or about August 26 28, 2024.” (Id. at 2.) On June 24, 2025, the Court received information that after reviewing the 27 complaint and an incident package and RVR dated the same date as noted in the complaint, at no 28 time was a “Lopez” involved in the incident nor was a “Lopez” working the same facility the date 1 of the incident. Service documents were forwarded to the United States Marshals Service. On 2 June 26, 2025, the United States Marshal filed a return of service unexecuted as to Defendant 3 Lopez. (ECF No. 13.) 4 Federal Rule of Civil Procedure 4(m) provides as follows:

5 If a defendant is not served within 120 days after the complaint is filed, the 6 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 7 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. 8 9 Fed. R. Civ. P. 4(m). 10 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 11 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 12 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 13 summons and complaint, and . . . should not be penalized by having his or her action dismissed 14 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 15 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 16 long as the prisoner has furnished the information necessary to identify the defendant, the 17 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 18 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 19 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 20 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 21 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 22 Here, the U.S. Marshal attempted to electronically serve Defendant Lopez with the 23 information that Plaintiff provided. However, the Court was informed that no individual by the 24 name of Lopez could be identified as involved in the incident at issue or working on the same 25 facility the date of the incident. The U.S. Marshal then attempted personal service on Defendant 26 Lopez, but was also informed that there was no Lopez working on the facility on the date of the 27 alleged incident, nor was there a Lopez named in a review of the incident. (ECF No. 13.) 28 Plaintiff therefore has not provided sufficient information to locate Defendant Lopez (or possibly 1 to name the correct defendant) for service of process. If Plaintiff is unable to provide the Marshal 2 with the necessary information to locate this defendant, Defendant Lopez shall be dismissed from 3 this action, without prejudice. As Defendant Lopez is the only defendant named in this action, 4 the action will also be dismissed, without prejudice. 5 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 6 why Defendant Lopez should not be dismissed from the action at this time. Plaintiff may respond 7 to this order by providing additional information that will assist the Marshal in locating 8 Defendant Lopez (or the correctly named defendant) for service of process. 9 Based on the foregoing, it is HEREBY ORDERED that: 10 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 11 why Defendant Lopez should not be dismissed from this action; and 12 2. The failure to respond to this order or the failure to show cause will result in the 13 dismissal of any unidentified defendant from this action, and dismissal of this action, 14 due to Plaintiff’s failure to serve process pursuant to Federal Rule of Civil Procedure 15 4(m). 16 IT IS SO ORDERED. 17

18 Dated: June 26, 2025 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19

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