(PC) Stokes v. Cheek

Opinion

1 2 3 4 5 6 7 10 11 ANTWONE STOKES, Case No. 1:24-cv-00691-BAM (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT OKRI SHOULD NOT BE 13 v. DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT 14 CHEEK, et al., INFORMATION TO EFFECTUATE SERVICE 15 Defendants. (ECF No. 20) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff Antwone Stokes (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 20 Plaintiff’s first amended complaint against Defendants Cheek, Okri, and Alverez for failure to 21 protect and denial of medical care in violation of the Eighth Amendment. 22 On December 23, 2024, the Court issued an order directing service on Defendants under 23 the Court’s E-Service pilot program for civil rights cases for the Eastern District of California. 24 (ECF No. 20.) The order included the following information regarding Defendant Okri: “Mr. 25 Okri, Nurse; NKSP; on or about May 28, 2024.” (Id. at 2.) On January 3, 2025, the Court 26 received information that Defendant Okri could not be identified. 27 /// 28 /// 1 Federal Rule of Civil Procedure 4(m) provides as follows:

2 If a defendant is not served within 120 days after the complaint is filed, the 3 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 4 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. 5 6 Fed. R. Civ. P. 4(m). 7 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 8 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 9 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 10 summons and complaint, and . . . should not be penalized by having his or her action dismissed 11 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 12 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 13 long as the prisoner has furnished the information necessary to identify the defendant, the 14 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 15 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 16 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 17 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 18 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 19 Here, the U.S. Marshal attempted to electronically serve Defendant Okri with the 20 information that Plaintiff provided. However, the Marshal was informed that there was not 21 enough information to identify Defendant Okri for service of process, and there is no one in the 22 CCHCS registry with this name. If Plaintiff is unable to provide the Marshal with the necessary 23 information to identify and locate this defendant, Defendant Okri shall be dismissed from this 24 action, without prejudice. 25 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 26 why Defendant Okri 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 Defendant Okri for service of process. For example, Plaintiff may provide the correct spelling of 1 Defendant Okri’s name, an approximate time or shift when the incident took place, a building 2 number or facility where the incident took place, or other identifying physical features for 3 Defendant Okri. 4 Based on the foregoing, it is HEREBY ORDERED that: 5 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 6 why Defendant Okri should not be dismissed from this action; and 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 IT IS SO ORDERED. 11

12 Dated: January 6, 2025 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 13

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