(PC) Johnson v. Kern County Jail

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ROBERTO JOHNSON, 1:22-cv-01046-NODJ-SKO (PC)

10 Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE 11 v. ORDER EXTENDING DEADLINE 12 KERN COUNTY JAIL, et al., WITHIN WHICH PLAINTIFF MAY SUBMIT ADDITIONAL IDENTIFYING 13 Defendants. INFORMATION REGARDING DEFENDANT FRYE 14

15 16 Plaintiff Roberto Johnson is a former county and current state inmate proceeding pro se 17 and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action 18 proceeds on Plaintiff’s Eighth Amendment failure to protect claim against Defendant Frye. 19 I. RELEVANT BACKGROUND 20 On October 27, 2023, this Court issued its Order Finding Service Appropriate And 21 Forwarding Service Documents To Plaintiff For Completion And Return. (Doc. 16.) Plaintiff 22 submitted service documents on January 10, 2024. (Doc. 21.) On that same date, the United 23 States Marshals Service was directed to serve the summons and complaint on Defendant Frye. 24 (Doc. 22.) The order identified Defendant Frye as follows: “Kern County Deputy Sheriff Frye, 25 Badge No. 1572.” (Id, emphasis in original.) 26 On March 26, 2024, the United States Marshals Service filed a USM-285 form indicating 27 service on Defendant Frye could not be effected. (Doc. 24.) The United States Marshals Service 28 was advised by the Kern County Sheriff’s Office that “Deputy Frye has not worke[d] there since 1 2021.” (Id.)1 2 On March 29, 2024, this Court issued its Order To Show Cause (“OSC”) Why Defendant 3 Frye Should Not Be Dismissed From This Action For Failure To Provide Sufficient Information 4 To Effect Service. (Doc. 25.) Plaintiff was ordered to respond to the OSC within 30 days. (Id. at 5 3.) On April 15, 2024, Plaintiff filed a written response to the OSC. (Doc. 26.) 6 II. DISCUSSION 7 In his response to the OSC, Plaintiff states that he had a family friend perform an “online 8 address search” to locate Defendant Frye, but the search was not successful. (Doc. 26.) Plaintiff 9 states he has been diligent in his search for Frye, and requests “leave to conduct early third party 10 discovery to obtain information regarding Defendant Frye locations, and to serve subpoenas to 11 Kern County Jail.” (Id. At 1.) Plaintiff asks the Court to direct the United States Marshal to 12 contact the Kern County Jail “to attempt to locate a current address or last known address for 13 Defendant Frye, and use reasonable efforts to effect service of Summons upon” Frye. (Id.) 14 Plaintiff also requests the Court to “instruct Kern County Jail to advise whether it could locate an 15 alternative address for Defendant (former Deputy) Frye.” (Id. at 2.) 16 As Plaintiff was advised in the OSC, it is his obligation “to provide the Marshal with 17 accurate and sufficient information to identify the defendant and to effect service of the summons 18 and complaint.” Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994). (See Doc. 25 at 2.) 19 Plaintiff was also advised he “may respond to [the OSC] by providing additional information.” 20 (Id. at 3.) He was advised that “[h]elpful additional information might include, for example, first 21 initial or name if known, a physical description (approximate age, height and weight, eye and hair 22 color, any other distinguishing feature), possible current employment and/or residential 23 addresses.” (Id. at 3, n.2.) Plaintiff’s response to the OSC offers none of the suggested helpful 24 information. 25 The United States Marshal has aided Plaintiff by attempting personal service on “Deputy 26 Frye” at the “Kern County Jail” on March 25, 2024. (See Doc. 24.) However, based upon the 27 information provided by Plaintiff service could not be completed. It is not the Marshal’s

28 1 Apparently, no last known address for Deputy Frye was available and/or provided. 1 responsibility to locate Defendant Frye. See Howard v. Encinas, No. 1:18-cv-01710-DAD-EPG 2 (PC), 2020 WL 2489634, *2 (E.D. Cal. May 14, 2020) (“As Plaintiff has failed to provide the 3 Marshal with accurate and sufficient information to effect service of summons and complaint on 4 defendant Leno and W. Hanna,” where the institution of confinement at the time of the incident 5 reported neither “Leno” nor “W. Hanna” was employed at that institution, the Court 6 recommended dismissal of those defendants) (recommendation adopted July 10, 2020, 2020 WL 7 3893633); Heredia v. Lawrence, No. 17cv1560-LAB (LL), 2019 WL 1330316, at *2 (S.D. Cal. 8 Mar. 25, 2019) (plaintiff suggested burden of locating defendants should “be on the USMS or the 9 Court” but it is plaintiff’s responsibility to provide the necessary information and the “USMS 10 does its best to effect service as instructed, but it does not have the ability to track down every 11 defendant named in a complaint if the information provided by the plaintiff is faulty”). Nor does 12 that burden fall or extend to the Court. See, e.g., Heredia, 2019 WL 1330316, at *2; Harbridge v. 13 Hall, Lee, and Tucker, No. 1:10-cv-00473-DAD-JLT (PC), 2017 WL 1821282, at *5 (E.D. Cal. 14 May 5, 2017) (“Plaintiff argues that the Ninth Circuit should ‘clearly carve out ... a new rule’ 15 requiring district courts to order the U.S. Marshal to access the internet and public records to 16 locate defendants who no longer work for the CDCR for purposes of service. Plaintiff has failed 17 to come forward with any legal precedent for imposing such requirements on the U.S. Marshal 18 and the court has found none. In addition, given the number of incarcerated plaintiffs who 19 proceed pro se in this district, the court declines to impose such an overwhelming and additional 20 burden on the U.S. Marshal”). 21 Before the Court will consider directing the Marshal to make further service of process 22 efforts regarding Defendant Frye by contacting the Kern County Sheriff’s Office, Plaintiff will be 23 directed to provide a physical description of Defendant Frye and any other identifying 24 information available to him. As discussed in this Court’s First Screening Order, Plaintiff alleges 25 that Defendant Frye failed to protect Plaintiff by refusing to wear a mask during the COVID-19 26 pandemic. (Doc. 10 at 3-7.) It is reasonable to infer from the allegations that Plaintiff should be 27 able to provide a physical description of Defendant Frye as he seeks to hold Frye responsible for 28 Frye’s actions before February 13, 2021, including placing “non-infected inmates into ‘a 1 quarantine which infected all inmates including Plaintiff in that jail.’” (Id. at 3.) 2 Plaintiff will be directed to provide a physical description of Defendant Frye and any 3 other available identifying information. Upon receipt of that information from Plaintiff, the Court 4 will determine whether it is appropriate to order the United States Marshal to make additional 5 efforts to effect service of process on Defendant Frye. 6 III. CONCLUSION AND ORDER 7 For the reasons given above, IT IS HEREBY ORDERED that Plaintiff SHALL provide 8 a physical description of Defendant Frye, accompanied by any other identifying information 9 available to Plaintiff, within 21 days of the date of service of this order. 10 Plaintiff is advised the failure to respond to this order may result in a 11 recommendation for the dismissal of any unidentified defendant from this action, due to 12 Plaintiff’s failure to serve process pursuant to Federal Rule of Civil Procedure 4(m), or a 13 recommendation for the dismissal of this action for Plaintiff’s failure to obey court orders. 14 IT IS SO ORDERED. 15

16 Dated: April 16, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 17

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