(PC) Phelps v. Perez

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA PAUL PHELPS, Case No. 1:21-cv-01108-JLT-BAM (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT BETTES SHOULD NOT BE 13 v. DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT PEREZ, et al., INFORMATION TO EFFECTUATE SERVICE 15 Defendants. (ECF No. 18) THIRTY (30) DAY DEADLINE I. Introduction 19 Plaintiff Paul Phelps (“Plaintiff”) is a pretrial detainee proceeding pro se and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended complaint against: (1) Defendants Townsend and Bettes for excessive force in violation of the Fourteenth Amendment; (2) Defendant Perez for supervisor liability in violation of the Fourteenth Amendment; and (3) Defendant County of Madera for Monell liability in violation of the Fourteenth Amendment.

25 II. Service by the United States Marshal 26 On January 6, 2022, the Court issued an order directing the United States Marshal to initiate service of process in this action upon all defendants. (ECF No. 15.) On January 19, 2022, the United States Marshal filed a return of service unexecuted as to Defendant Correctional Officer Bettes. (ECF No. 18.)

2 Federal Rule of Civil Procedure 4(m) provides as follows: 3 If a defendant is not served within 90 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 5 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

7 Fed. R. Civ. P. 4(m).

8 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 16 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.

20 Here, the U.S. Marshal attempted to serve Defendant Bettes with the information that Plaintiff provided. However, the Marshal was informed that Defendant Bettes is no longer employed by the Madera County Department of Corrections and no forwarding address was provided for Defendant Bettes. (ECF No. 18.) Plaintiff therefore has not provided sufficient information to identify and locate Defendant Bettes for service of process. If Plaintiff is unable to provide the Marshal with the necessary information to identify and locate this defendant, Defendant Bettes 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 Bettes should not be dismissed from the action at this time.

1 III. Conclusion and Order 2 Based on the foregoing, it is HEREBY ORDERED that: 3 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause why Defendant Bettes should not be dismissed from this action; and 5 2. The failure to respond to this order or the failure to show cause will result in the dismissal of Defendant Bettes from this action.

IT IS SO ORDERED.

9 Dated: January 20, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE