(PC) Duncan v. California Healthcare Receivership Corp.

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DIONTAE JOHAN DUNCAN, Case No. 1:20-cv-01288-ADA-SKO (PC)

12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANTS GRAYWALL AND 13 v. GERDERAL SHOULD NOT BE DISMISSED FROM THIS ACTION FOR FAILURE TO 14 CALIFORNIA HEALTHCARE PROVIDE SUFFICIENT INFORMATION RECEIVERSHIP CORP., et al., TO EFFECT SERVICE 15 Defendants. 16 21-DAY DEADLINE

18 19 Plaintiff Diontae Johan Duncan is proceeding pro se and in forma pauperis in this civil 20 rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Eighth Amendment 21 deliberate indifference to serious medical needs claims against Defendants Marciel, Graywall, 22 Taylor, Gerderal and Jane Does #1 and #2, as alleged in Plaintiff’s second amended complaint. 23 I. BACKGROUND 24 Following screening, this Court issued its Order Finding Service Appropriate on June 6, 25 2023. (Doc. 81.) Service of Defendants Marciel, Graywall, Taylor, and Gerderal was to be 26 effected under the Court’s e-service pilot program. (Id. at 2.) The Order included the following 27 information regarding Defendants Graywall and Gerderal: “G. Graywall, allegedly employed as a 28 psychologist at Kern Valley State Prison between 2017 and 2020” and “W. Gerderal III, allegedly 1 employed as a senior crisis psychologist at Kern Valley State Prison between 2017 and 2020.” 2 (Id.) 3 On July 20, 2023,1 the Court received a notice of intent not to waive personal service as to 4 Defendants Graywall and Gerderal as neither could be identified based upon the information 5 provided. (Doc. 88.) On July 25, 2023, the United States Marshal advised the Court that service 6 could not be effected on Defendants Graywall and Gerderal because neither individual was 7 employed or had been assigned to work at Kern Valley State Prison (“KVSP”). (Doc. 89.) 8 II. DISCUSSION 9 Federal Rule of Civil Procedure 4(m) provides as follows:

10 If a defendant is not served within 90 days after the complaint is filed, the court— 11 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 12 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 13 14 Fed. R. Civ. P. 4(m). 15 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 16 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 17 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 18 summons and complaint, and . . . should not be penalized by having his or her action dismissed 19 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 20 duties required of each of them . . ..” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). 21 “So long as the prisoner has furnished the information necessary to identify the defendant, the 22 marshal’s failure to effect service is ‘automatically good cause . . ..’” Walker v. Sumner, 14 F.3d 23 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 24 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient 25 information to effect service of the summons and complaint, the Court’s sua sponte dismissal of 26

27 1 Also on July 20, 2023, the Court received a notice of intent to waive personal service for Defendants J. Marciel and T. Taylor. (Doc. 87.) Accordingly, the Court anticipates waivers as to these Defendants will 28 be filed in due course. 1 the unserved defendant is appropriate. Walker, 14 F.3d at 1421-22. 2 Here, the United States Marshal has attempted to serve Defendants Graywall and 3 Gerderal. The Marshal was advised that neither Graywall nor Gerderal was employed, or had 4 been employed, at KVSP. Therefore, Plaintiff has failed to provide the Marshal with accurate and 5 sufficient information to effect service of the summons and Plaintiff’s second amended complaint 6 on Defendants Graywall and Gerderal. Walker, 14 F.3d at 1421-22. If Plaintiff is unable to 7 provide the United States Marshal with the necessary information to locate these individuals, 8 Defendants Graywall and Gerderal shall be dismissed from this action, without prejudice, 9 pursuant to Rule 4 of the Federal Rules of Civil Procedure. 10 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 11 why Defendants Graywall and Gerderal should not be dismissed from the action at this time. 12 Plaintiff may respond to this order by providing additional information that will assist the United 13 States Marshal in locating Defendants Graywall and Gerderal for service of process. 14 III. ORDER 15 Based on the foregoing, IT IS HEREBY ORDERED that: 16 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 17 why Defendants Graywall and Gerderal should not be dismissed from this action; and 18 2. The failure to respond to this order or the failure to show cause will result in the 19 dismissal of any unidentified defendant from this action, due to Plaintiff’s failure to 20 serve process pursuant to Federal Rule of Civil Procedure 4(m). 21 IT IS SO ORDERED. 22

23 Dated: August 4, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 24

25 26 27 28