(PC) Hunter v. Rosales

• Court: District Court, E.D. California
• Decided: August 8, 2023
• Docket: 1:22-cv-00219
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NATHAN HUNTER, Case No. 1:22-cv-00219-SKO (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT RILEY SHOULD NOT BE 13 v. DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT 14 I. ROSALES, et al., INFORMATION TO EFFECT SERVICE

15 Defendants. 21-DAY DEADLINE 16

18 Plaintiff Nathan Hunter is a state prisoner appearing pro se and in forma pauperis in this 19 action pursuant to 42 U.S.C. § 1983. (Doc. 1.) This action proceeds on Plaintiff’s Eighth 20 Amendment excessive force and failure to protect claims against Defendants R. Covarrubias, R. 21 Figueroa, J. Gaurdodo-Mendez, C. Riley, I. Rosales, and R. Volker. 22 I. RELEVANT PROCEDURAL BACKGROUND 23 On February 28, 2023, the Court issued its Order Finding Service of Complaint 24 Appropriate. (Doc. 7.) Service was to be effected using the Court’s e-service pilot program. (Id. at 25 2.) The Order included the following information regarding Defendant Riley: “C. Riley, allegedly 26 employed as a correctional officer at Kern Valley State Prison on November 18, 2019.” (Id.) 27 On April 19, 2023, the Court received a notice of intent not to waive personal service as to 28 1 Defendants C. Riley and R. Volker.1 (Doc. 17.) On May 23, 2023, the United States Marshal 2 advised the Court that service could not be effected on Defendant C. Riley. (Doc. 21.) Riley was 3 apparently no longer employed by the California Department of Corrections and Rehabilitation 4 (“CDCR”) and the last known address for Riley—a residential address in Bakersfield—was no 5 longer valid. (Id.) The current tenant of that residence advised the United States Marshal that 6 Riley had not lived at that address for five years. (Id.) 7 II. DISCUSSION 8 Federal Rule of Civil Procedure 4(m) provides as follows:

9 If a defendant is not served within 90 days after the complaint is filed, the court— 10 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 11 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 12 13 Fed. R. Civ. P. 4(m). 14 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 15 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 16 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 17 summons and complaint, and . . . should not be penalized by having his or her action dismissed 18 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 19 duties required of each of them . . ..” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). 20 “So long as the prisoner has furnished the information necessary to identify the defendant, the 21 marshal’s failure to effect service is ‘automatically good cause . . ..’” Walker v. Sumner, 14 F.3d 22 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 23 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient 24 information to effect service of the summons and complaint, the Court’s sua sponte dismissal of 25 the unserved defendant is appropriate. Walker, 14 F.3d at 1421-22. 26 1 Waivers of Service were returned executed as to Defendants Covarrubias, Figueroa, Gaurdodo-Mendez, 27 Rosales and Volker. (Docs. 18 & 22.) Further, a responsive pleading is due to be filed on behalf of these Defendants no later than July 27, 2023. (See Doc. 25 [order granting extension of time to file responsive 28 pleading].) 1 Here, the United States Marshal has attempted to serve Defendant Chad Riley. The 2 Marshal was advised that Riley was no longer employed by CDCR, and investigation revealed 3 Riley no longer lived at his last known address in Bakersfield. Plaintiff has failed to provide the 4 Marshal with accurate and sufficient information to effect service of the summons and Plaintiff’s 5 complaint on Defendant Riley. Walker, 14 F.3d at 1421-22. If Plaintiff is unable to provide the 6 United States Marshal with the necessary information to locate this individual, Defendant Riley 7 shall be dismissed from this action, without prejudice, pursuant to Rule 4 of the Federal Rules of 8 Civil Procedure. 9 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 10 why Defendant Riley should not be dismissed from the action at this time. Plaintiff may respond 11 to this order by providing additional information that will assist the United States Marshal in 12 locating Defendant Riley for service of process. 13 III. ORDER 14 Based on the foregoing, IT IS HEREBY ORDERED that: 15 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 16 why Defendant Riley should not be dismissed from this action; and 17 2. The failure to respond to this order or the failure to show cause will result in the 18 dismissal of any unidentified defendant from this action, due to Plaintiff’s failure to 19 serve process pursuant to Federal Rule of Civil Procedure 4(m). 20 IT IS SO ORDERED. 21

22 Dated: August 7, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 23

24 25 26 27 28