(PC) Gonzalez v. Akhavan

Opinion

JAIME CESAR GONZALEZ, Case No. 1:23-cv-01506-JLT-BAM (PC) Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT MARTINEZ SHOULD NOT v. BE DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT AKHAVAN, et al., INFORMATION TO EFFECTUATE SERVICE Defendants. (ECF No. 25) THIRTY (30) DAY DEADLINE Plaintiff Jaime Cesar Gonzalez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended complaint for deliberate indifference to medical care against Defendants Lt. Jane Doe, correctional officer John Doe, and correctional officer Martinez for forcing Plaintiff into the van transport following back surgery, in violation of the Eighth Amendment. On November 21, 2024, the Court issued an order directing service on Defendant Martinez under the Court’s E-Service pilot program for civil rights cases for the Eastern District of California.1 (ECF No. 25.) The order included the following information regarding Defendant Martinez: “Martinez, Correctional Officer; van transport from Bakersfield Advantist (or 1 At the time, the Court did not find service appropriate for Defendants Jane Doe and John Doe because the U.S. Marshal cannot serve a Doe Defendant. Adventist) Hospital to California City Correctional Facility; on or about April 27, 2023.” (Id. at 2.) On December 11, 2024, the Court received information that Defendant Martinez had retired from CDCR and could not be contacted at his last known address or phone number. Service documents were forwarded to the United States Marshals Service. On December 13, 2024, the United States marshal filed a return of service unexecuted as to Defendant Martinez. (ECF No. 28.) 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 electronically serve Defendant Martinez with the information that Plaintiff provided. However, the Court was informed that Defendant Martinez could not be located with the information provided or the last known phone number or address on file with CDCR. The U.S. Marshal then attempted personal service at the last known address for Defendant Martinez, but was informed by the new home owner that they have lived at that address since 2016, and Defendant Martinez does not live there. (ECF No. 28.) Plaintiff therefore has not provided sufficient information to locate Defendant Martinez for service of process. If Plaintiff is unable to provide the Marshal with the necessary information to locate this defendant, Defendant Martinez 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 Martinez should not be dismissed from the action at this time. Plaintiff may respond to this order by providing additional information that will assist the Marshal in locating Defendant Martinez 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 Martinez should not be dismissed from this action; and 2. The failure 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). IT IS SO ORDERED.

Dated: February 28, 2025 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE