(PC) John E. Mitchell v. Baeza

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN EDWARD MITCHELL, Case No. 1:20-cv-00857-HBK (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT VANG SHOULD NOT BE 13 v. DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT 14 H. BAEZA, et al. INFORMATION TO EFFECTUATE SERVICE 15 Defendants. (Doc. No. 42) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff John Edward Mitchell is a state prisoner proceeding pro se in this civil rights 19 action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s First Amendment 20 retaliation claims against Defendants Baeza and Gutierrez; Eighth Amendment Failure to Protect 21 claims against Defendants Baeza, Gutierrez, Valencia-Mendoza, John Doe #1, Parra, and Vang; 22 Intentional Infliction of Emotional Distress claims against Defendants Baeza and Gutierrez; 23 Negligence claims against Defendants Baeza, Gutierrez, Valencia-Mendoza, Parra, John Doe #1 24 and Vang; Bane Act claims against Defendants Baeza, Gutierrez, Valencia-Mendoza, and inmate 25 McDuffy; and civil conspiracy claims against Defendants Baeza and Gutierrez. (See Doc. No. 42 26 at 1-2). 27 On February 14, 2024, the Court issued an order directing service on Defendants under 28 the Court’s E-Service pilot program for civil rights cases for the Eastern District of California. 1 (See id.). The ordered included the following information regarding Defendant Vang: “Vang, 2 Correctional Officer at CSP-Corcoran during January 2016.” (Id. at 2). 3 On February 21, 2024, the Court received information that correctional officials were 4 unable to identify a correctional officer Vang. (Doc. Nos. 45, 47). If Plaintiff is unable to 5 provide the Marshal with the necessary information to identify and locate this defendant, 6 Defendant Vang shall be dismissed from this action, without prejudice. Specifically, Federal 7 Rule of Civil Procedure 4(m) provides as follows:

8 If a defendant is not served within 120 days after the complaint is filed, the 9 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 10 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. 11 12 Fed. R. Civ. P. 4(m). 13 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 14 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 15 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 16 summons and complaint, and . . . should not be penalized by having his or her action dismissed 17 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 18 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 19 long as the prisoner has furnished the information necessary to identify the defendant, the 20 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 21 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 22 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 23 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 24 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 25 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 26 why Defendant Vang should not be dismissed from the action at this time. Plaintiff may respond 27 to this order by providing additional information that will assist the Marshal in identifying 28 1 | Defendant Vang for service of process. For example, Plaintiff may provide an approximate date 2 | for the incident at issue, a building number or facility where the incident took place, or other 3 | identifying physical features for Defendant Vang. 4 Accordingly, it is ORDERED: 5 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 6 why Defendant Vang should not be dismissed from this action. 7 2. The failure to respond to this order or the failure to show cause will result in the 8 dismissal of any unidentified defendant from this action, due to Plaintiff's failure to 9 serve process pursuant to Federal Rule of Civil Procedure 4(m). 10 Dated: _ March 25, 2024 Mle fareh Zack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE

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